Draft Revised Merger Guidelines: Key Changes And Early Takeaways

On 30 April 2026, almost a year after the launch of its public consultation, the European Commission (Commission) published its eagerly awaited revised draft Merger Guidelines (Draft Guidelines). The draft text, just shy of 100 pages, sets forth the analytical framework for the assessment of both horizontal and non-horizontal mergers. 

Background and Context

The current Horizontal Merger Guidelines and Non-Horizontal Merger Guidelines were adopted in 2004 and 2008, respectively. Since then, the decisional practice of the Commission has evolved significantly, which has in part been guided by the oversight of the EU courts. It follows that a revamp of the core substantive assessment guidance has been long overdue. The Commission has also been galvanised into action by demands that its policies need to be adapted to the profound economic, technological, and geopolitical shifts. This is reflected in the Draghi Report, a bedrock of the policy priorities of the Ursula von der Leyen-led Commission, which calls for a recalibration of competition policy to align more closely with broader industrial policy and strategic autonomy objectives. In particular, the Draft Guidelines incorporate ‘competitiveness’ and ‘resilience’ into the analytical framework.

While several elements of the Draft Guidelines have in practice been applied for some time, they do feature new or expanded concepts. This does not however represent a fundamental change to EU merger control rules: the 2004 Merger Regulation remains in force for the foreseeable future.

Initial Takeaways

• Overall Policy Direction. The Draft Guidelines mark a policy shift towards a more dynamic, forward-looking approach in EU merger control. More guidance is dedicated to the assessment of potential pro-competitive benefits of mergers which enhance scale, innovation, investment and resilience. The significant impediment to effective competition (SIEC) test remains central, but the Commission acknowledges that certain largescale combinations may enhance competition, including where it leads to the creation of stronger European players; and that long-term effects like innovation and the robustness of supply chains deserve appropriate consideration.
• Competitiveness/Resilience. Mergers that deliver efficient scale without materially harming competition are expressly framed as potentially positive for EU competitiveness, innovation and resilience. This includes a receptive stance towards cross-border combinations of complementary businesses with limited overlaps. Conversely, the Draft Guidelines underline that competitiveness is not a free pass for anticompetitive deals. There is no scope for a national champion narrative where it masks market power or inefficiency. Competitiveness, resilience, security of supply, and strategic autonomy may be part of the competitive assessment, but only within the bounds of the SIEC test.
• Market Power. Market shares remain an important indicator of market power, but are not determinative. The Draft Guidelines include expanded guidance on the assessment criteria of market power and countervailing factors. However, the key concepts remain unchanged.
• Dynamic/forward-looking theories of harm. The Draft Guidelines have been updated to reflect the Commission’s decisional practice by clearly articulating dynamic/forward-looking theories of harm in order to capture modern market dynamics. This includes the Commission’s approach to examining non-price and longer-term harms, including a reduction of innovation competition (Dow/Dupont), the elimination of a potential competitor (Norsk Hydro/Alumatel), and ecosystem theories of harm (Booking/eTraveli). 
• Innovation shield/killer acquisitions. The Commission introduces an “innovation shield”: acquisitions of small innovative firms and start‑ups are presumed low risk, absent credible evidence that the target would have become a material competitive constraint. Specifically, the Draft Guidelines clarify that a merger will be deemed a “killer acquisition” only where a dominant firm acquires a nascent rival which is capable of evolving into a significant competitor, thus leaving the vast majority of acquisitions of start‑ups outside SIEC territory.
• Efficiencies. There are no material changes to the efficiencies assessment framework: the substantive test remains the same and the burden of proof rests with the merger parties to demonstrate that they translate into consumer benefits. However, the Draft Guidelines provide increased guidance including recasting efficiencies as a more disciplined “theory of benefit” and clarifying these may extend beyond short-term cost savings to include longer-term and non-cost benefits (sustainability, resilience, innovation). The possibility for merger parties to engage with the Commission on efficiencies early in the process was highlighted in the recent clearance of the Airbus/Air France JV (albeit the deal was unproblematic). The practical impact is likely to remain limited: efficiencies are unlikely to rescue problematic transactions.
• Legitimate interests. The Draft Guidelines underline the limited ability of Member States to invoke narrowly defined legitimate interests (public security, media plurality, financial stability) in order to intervene in EU merger reviews. This was illustrated by recent efforts by Member States to thwart merger reviews which fell exclusively within the exclusive remit of the Commission on highly questionable grounds (VIG/AEGON CEE and UniCredit/BPM). Member State governments must provide clear, evidence-based justifications to justify their claims that a given measure is appropriate to protect their legitimate interests. Measures that are disproportionate, discriminatory, or used to pursue purely economic or protectionist aims are unlawful.
• Labour markets. Another development is the introduction of labour market considerations into the assessment framework. Whilst job losses per se are not factored into merger reviews, the Draft Guidelines provide that a deterioration in wages or working conditions which stems from the exercise of monopsony or oligopsony power will be considered problematic.

Implications for future dealmaking

The Draft Guidelines may lead to a reshaping of deal strategy. This includes conducting broader risk screens for forward‑looking harms (beyond innovation pipelines and ecosystem effects) while simultaneously building evidenced “theories of benefit” around efficiencies, scale, innovation capacity and resilience. This places a greater emphasis on early internal modelling, robust third-party evidence and proactive engagement with key stakeholders such as customers and suppliers to shape the narrative from the outset as part of a coordinated advocacy strategy.

The Draft Guidelines are now subject to a public consultation until June 26, and are currently expected to be adopted by the end of 2026, with the newly introduced concepts likely guiding the Commission’s assessment of ongoing cases.