The EC’s Draft Merger Guidelines: Much to Welcome, a Little More Needed to Fully Deliver

In this piece for Linklaters, authors Bernd Meyring, Neil Hoolihan, William Leslie, Schweta Batohi & Elisha Kemp dive into the firm’s response to the European Commission’s public consultation on its draft merger guidelines. They argue that the draft represents a significant step forward by consolidating case law and enforcement practice, improving transparency, and explicitly recognizing that mergers can generate pro-competitive benefits through greater scale, investment, and innovation. At the same time, they identify several areas where the analytical framework could be strengthened.

The authors first focus on the treatment of competitiveness, scale, and investment. While welcoming the Commission’s acknowledgment that scale can produce competitive benefits, they argue that the draft places too much emphasis on global markets. Instead, they contend that the final guidelines should recognize that scale can support investment and effective competition regardless of whether the relevant market is global, regional, or national.

They next examine what they describe as a lack of practical symmetry between the assessment of competitive harms and benefits. According to the authors, the draft applies more demanding evidentiary standards to claimed merger benefits than to alleged harms, while also weakening safe harbors, offering limited guidance on positive investment effects, and appearing to prejudge the balancing of efficiencies. They argue that the Commission should adopt a more even-handed analytical framework that evaluates both positive and negative effects using consistent standards.

The authors also address the Commission’s expanded discretion under the draft guidelines, noting that broader theories of harm and longer assessment horizons will require increasingly complex judgments. They argue that the final guidelines should provide greater procedural certainty through clearer safe harbors, transparent methodologies for balancing competing effects, and an explicit obligation for the Commission to give equal consideration to evidence of pro-competitive benefits alongside potential competitive harms.

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