AlixPartners' Response To The EC's Consultation On Draft New Merger Guidelines

The European Commission (EC) has published draft new Merger Guidelines – its first major update since 2008. Paul Armstrong, Federica Grilli, Julie Bon, and Ben Forbes have responded to the consultation. View our full response below or download a copy.

Key points from our submission:

The counterfactual could go further. The Guidelines now address failing firms and refer to the "exit of firms" from a market, but they also exclude changes "under the control of a party to the merger." A firm exiting for strategic reasons sits between the two. It would help if the Commission clarified whether a counterfactual in which a target exits, or becomes a weaker competitor, can be considered.

The innovation shield is a welcome addition – with one question. The shield gives certainty to deals that leave at least three independent innovators. However, it may exclude sectors where R&D capability is already concentrated for reasons unrelated to the merger. These are also the sectors where the