Goodwin Antitrust & Regulatory Shorts: Echoes Of Change — The EU's Merger Guidelines Under Review

On 29 October 2025, the European Commission released the results of its broad consultation on the Horizontal and Non-Horizontal Merger Guidelines. The message came through unmistakably: The rules need a modern rewrite. From May to September, the responses, drawn from voices across 20 countries and as far afield as the US and India, carried a singular refrain: The world has moved on and so must the rules.

For decades, the guidelines have served as the analytic foundation of EU merger control, a monument to static market analysis and neatly ordered economic models. Yet the relentless advance of innovation, the surge of digitalisation, and the inevitable push toward sustainability have shaken that foundation. Respondents frequently described the guidelines as "out of step." Across sectors, stakeholders called for greater clarity, more flexible tools, and guidance that more accurately reflects how competition unfolds in today's interconnected and rapidly evolving markets.

The consultation responses revealed 10 key themes capturing the pulse of this debate:

1. Call for Clearer, Future-Ready Rules: Most respondents found the guidelines unclear and incomplete, requesting more dynamic, forward-leaning guidance addressing novel theories of harm, including ecosystems, network effects, and potential competition.
2. Legal Uncertainty Still Reigns: Many stakeholders viewed the guidelines as falling short on legal certainty and transparency. Larger companies and advisory professionals, in particular, criticised the ambiguity of the existing guidance and called for clearer, more predictable standards.
3. Innovation Still Under-Reflected: Around two-thirds of respondents believed the guidelines do not adequately explain how the European Commission assesses innovation or other dynamic factors, a growing concern in fast-moving markets.
4. Digitalisation Gap: Nearly 4 in 5 respondents said the guidelines lag behind the tech-driven economy and fail to reflect digital market realities.
5. Sustainability Blind Spot: A strong majority believed the guidelines do not provide clear, correct, updated, and comprehensive guidance on how merger control reflects the transition to a sustainable and climate-neutral economy with clean and resource-efficient solutions.
6. Demand for Modern Market-Power Tools: Almost all respondents agreed that the framework for assessing market power and dominance requires updating. Many also called for a review of how the European Commission evaluates foreclosure risks in non-horizontal mergers.
7. Efficiency Framework Too Narrow: Just over half of the respondents felt that the current framework for assessing efficiencies is too narrow. Stakeholders urged greater recognition of non-price efficiencies and the need for sector-specific timelines.
8. Public Policy Considerations Still Marginal: A clear majority argued that public policy considerations, such as labour markets, media plurality, and strategic industries, are insufficiently addressed. While some stakeholders advocated for guidance on how these factors should be incorporated into merger analysis, this approach remains anathema to competition law purists, who maintain that public policy considerations are already protected and/or better handled through other legal instruments.
9. Security and Defence in Focus: Most respondents acknowledged that mergers can have significant implications, both positive and negative, for security and defence and requested clearer guidance on how threat factors will be assessed within the merger framework.
10. One-Size-Fits-All Guidance No Longer Works: Many respondents noted that the guidelines lack flexibility to account for sector-specific characteristics, such as long investment cycles or high innovation intensity. They called for a more adaptable, economically grounded approach.

What Does This Mean for Businesses

The consultation signals a turning point. The European Commission appears ready to move beyond mechanical market share arithmetic and static pricing effects. Tomorrow's merger analysis will be more forward-looking, recognising innovation, sustainability, and digital transformation as central to competitive dynamics.

For dealmakers, the implications are immediate. Companies should:

• Engage competition counsel early to stress-test transactions based on the new terrain.
• Build data-driven, forward-looking narratives on innovation and sustainability.
• Track evolving European Commission thinking through upcoming workshops and the draft guidelines.

What Lies Ahead

The European Commission has already marked its next milestones: two workshops, on 4 December 2025 and 20 January 2026, to gather stakeholders and refine the blueprint. These workshops will offer businesses and their advisers a final practical opportunity to shape the framework that will guide EU merger control in the coming decade. Thereafter, a draft of the revised guidelines will emerge.

For now, the direction of travel is unmistakable. EU merger control is moving toward a more dynamic, policy-integrated model, better suited to the realities of modern markets. The time to prepare and engage is now.

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