Munich: Deal lawyers advising Bavaria’s industrial groups have spent the summer rereading a draft that will govern how Europe judges their next acquisition. The Commission published revised merger guidelines on 30 April, closed the public consultation on 26 June, and intends to adopt a final text in the last quarter of this year. The exercise merges the horizontal guidelines from 2004 and the non-horizontal guidelines from 2008 into one framework.
Two decades separate the current rules from the markets they now police. The 2004 text was written before app stores, before cloud infrastructure became a chokepoint and before supply-chain security entered competition analysis. The draft responds by giving weight to innovation, dynamic competition and resilience alongside the price effects that traditionally decided cases.
Executive Vice-President Teresa Ribera framed the change around time horizons. A merger once assessed mainly on short-term price effects, she argued, must now also be judged on how it affects European innovation, investment and security of supply over the longer term. She also told an interviewer in April that the guidelines are no blank cheque for dealmakers, which is the sentence corporate counsel quote most often when clients read the draft optimistically.
Industry lobbied hard for a different reading. European telecoms operators and defence suppliers argue that fragmented national markets leave them subscale against American and Chinese rivals, and they want consolidation treated as a route to competitiveness rather than a threat to consumers. The draft opens that door slightly by allowing efficiency and resilience arguments more room, and closes it by demanding evidence that those benefits reach customers rather than shareholders.
Practitioners have flagged the evidentiary problem. Innovation harm is speculative by nature. Proving that a deal will suppress a product nobody has built yet requires the Commission to model counterfactuals over five or ten years, and the General Court has previously found that the institution stretched its evidence when it tried. The merger control framework gains flexibility from the new theories of harm and gains litigation risk at the same time.
The Commission has kept the conversation open longer than usual, running a dedicated conference on the future of merger control to test the draft against practitioners. That engagement reflects how much the final text will shape deal planning, because guidelines bind the Commission’s own analysis and companies build filing strategies around them years in advance.
Nothing in the revision changes the merger regulation itself. Thresholds stay where they are, which leaves the acquisition of small companies with large future potential outside mandatory review unless a national authority refers the case upward. Several member states want that gap addressed, and the guidelines cannot address it.
Adoption in the fourth quarter would put the new framework in force for the 2027 deal cycle. Advisers already assume the draft describes how case teams think, which means the guidelines are shaping notifications months before anyone formally adopts them.
