EU Merger Control Reimagined: Draft Guidelines Shift Approach To Scale, Dynamic Competition, And Benefits

The European Commission (EC)’s draft Guidelines on the assessment of mergers (draft Guidelines) have done a difficult job in a clever way, creating fresh opportunities—but also more work—for dealmakers. The challenge was to allow companies to gain further scale and capture efficiencies, so as to contribute to European industrial strength and resilience, while preserving competition that drives lower prices, higher quality, and new products and services for consumers.

The draft Guidelines propose an intellectually coherent framework for reconciling these opposing objectives. This allows, for the first time, arguments around the benefits of a transaction to play a meaningful role in merger assessment. But, in doing so, the draft Guidelines also give the EC increased avenues to attack transactions through expanded theories of harm, and greater discretion in key areas.