Baker Botts was pleased to sponsor the 13th edition of the Global Antitrust Hot Topics: EU, US & Global Perspectives, one of the premier gatherings in the EU Competition law community. The 25 September program featured insights from the European Commission, economists and practitioners, providing attendees with the opportunity to hear first hand the forthcoming changes in EU and US merger control policy. We provide some of the key takeaways but do not hesitate to reach out to receive further insights into these crucial topics.
Key Takeaways
The European Commission's update on the review of the
merger guidelines
Head of Unit for IT, Communication and Media Mergers at DG COMP Annemiek Wilpshaar sat down to discuss the ongoing review of the EU horizontal and non-horizontal merger guidelines, which respectively formalize the analytical framework for assessing mergers between competitors and vertical and conglomerate mergers. The consultation ended on 3 September 2025 and revealed strong demand for clearer guidance on several fronts: innovation and dynamic effects, scale and efficiencies, and digitalization.
- On innovation, stakeholders called for a more forward-looking approach to assessing how mergers affect future R&D, investment, and market dynamics. Wilpshaar highlighted the importance of codifying the good practices developed in past cases which already tackled innovation and nascent competition.
- On scale, companies often argue that scaling up in their national market is necessary to invest. Wilpshaar noted that startups expanding across borders to tap the full EU market are rarely problematic, while consolidation within national markets often raises concerns about entrenching market power rather than fostering global competitiveness. Although 95% of mergers are cleared unconditionally, concentrated markets pose the harder question of whether scale delivers genuine efficiencies—such as fixed-cost savings reinvested in R&D and infrastructure—or simply reinforces dominance.
- On efficiencies, stakeholders want clearer guidance, and the Commission is exploring new metrics and standards focused on whether benefits are passed on to consumers—balancing short-term price effects with longer-term, less certain qualitative gains.
- On digitalization, attention is focused on acquisitions by large platforms of complementary assets, which may raise concerns of entrenching market power beyond traditional foreclosure theories. The pending Booking/Etraveli judgment is expected to shape the legal framework for assessing such mergers. "Killer acquisitions" also drew strong reactions, with many warning against under-enforcement. Wilpshaar emphasized the need for balance: harmful deals must be addressed, but startups also depend on predictable exit strategies—including sales to large platforms—to secure funding. Proposals such as an "innovation shield for startups" could help provide that predictability.
Wilpshaar gave an update on next steps and confirmed that the review of the EU merger guidelines is moving faster than originally expected. Draft guidelines are now planned for spring 2026, with final adoption by year-end—one year earlier than previously foreseen. In the meantime, the Commission underlined that day-to-day merger enforcement continues, already reflecting many of the principles under discussion.
Telefónica's position
Telefónica's Director of Competition Beatriz Sanz Fernandez-Vega confirmed the company's vocal position expressed during the review process. Telefónica proposes a cross-sectorial improvement of the technical assessment of mergers—without any notion of politicizing competition law—resting on two principles:
- Embracing the full concept of consumer welfare. Competition authorities have focused too narrowly on price effects, neglecting other crucial dimensions of competition such as quality, innovation and consumer choice. Resilience, competitiveness, sustainability and investment intensity must also be considered in merger review, wherever these are actual parameters of competition.
- Moving away from static, neoclassical models of perfect competition toward a dynamic efficiency framework. Current reliance on static theories—assuming homogenous products, equilibrium markets, and a simple link between the number of players and competitiveness—does not reflect market realities. For the telecoms sector, a dynamic efficiency framework would be better adapted, focusing on supply-side conditions, productivity growth, and long investment cycles of 8–12 years.
Adopting this dynamic approach would reshape the merger process itself. The Significant Impediment to Effective Competition Test ("SIEC")—i.e., the test under which the Commission's weighs a merger's anticompetitive effects—would need to capture not only potential price effects but also impacts on investment and innovation. Efficiencies could be evaluated more broadly, including out-of-market effects, and the current asymmetry in the burden of proof between the Commission and the parties should be reconsidered. Remedies should evolve and potentially include investment-related commitments—e.g., CMA's recent willingness to consider investment commitments—allowing authorities to address concerns about incentives and ability to invest. Wilpshaar however questioned a heavier reliance on investment commitments, mindful that the real issue is one of incentives: if companies lack the incentive to invest post-merger, turning their plans into binding commitments does not make them credible.
Efficiencies and presumptions in merger assessments
Joan De Solà-Morales, a partner at RBB (Brussels), noted that mergers and acquisitions are, at their core, one of the tools firms use in the pursuit of economic efficiency. Efficiencies can benefit consumers and strengthen rivalry, yet they have played only a marginal role in EU merger control—rarely examined, seldom accepted, and never decisive. The framework laid in the 2004 Guidelines, i.e., the three conditions for recognizing efficiencies—verifiability, merger specificity, and consumer benefit—remain valid, but their application needs rethinking, with new evidentiary standards and analytical approaches. Bringing efficiencies into the center of the assessment could be achieved through:
- Verifiability. At present, the Commission applies an excessively high standard of proof to efficiencies, which must be "almost certain" to materialize, creating a serious imbalance compared with the evidentiary standard used for anti-competitive effects. Efficiencies should be assessed on the same "balance of probabilities" standard—i.e., "more likely than not"—that is applied to potential harm.
- Merger specificity. The Commission tends to ask whether an efficiency could be achieved through less anticompetitive means, but the right question is whether it would be achieved in practice. Efficiencies should be judged against the likely counterfactual; focusing on "would," not a hypothetical "could."
- Consumer benefit. The Commission's focus on short-term effects can be misguided as major benefits—innovation, cost savings, productivity—can emerge in the long run. If long-term harms can be considered (e.g., when looking at potential competition or "killer acquisitions") long-term efficiencies should be too.
Practitioners often note a "signaling" problem in relation to efficiencies, raising skepticism in both EU and US merger proceedings. Clients may resist making efficiency submissions, fearing the risk that the Commission will dismiss them—and worse, interpret the efficiencies claims as an implicit admission of anti-competitive effects which need to be outweighed by efficiencies. Inviting firms earlier to explain their deal rationale and efficiency plans and signaling that such arguments will be assessed on their merits, would help. Wilpshaar emphasized that efficiency claims are not defensive but should be advanced early, particularly in digital and tech deals where the Commission scrutinizes complementarities from the outset.
RBB also view the introduction of structural presumptions in the new guidelines as a huge risk. Presumptions could push EU merger control back toward a form-based approach, where structural measures such as concentration levels carry determinative weight. While structural assessments are indispensable as a starting point, they should serve only as a screen to identify areas needing deeper inquiry—not as conclusive evidence of harm. There are three main problems with rebuttable presumptions based on structural indicators:
- Weak and uneven probative value. The meaning of structural indicators varies dramatically across industries. In some markets, shares may be a good proxy for market power or closeness of competition; in others, they are misleading. Moreover, the "optimal" level of concentration is highly sector-specific—dependent on the level of investment, innovation, or quality required.
- Ignoring critical competitive factors. Structural presumptions risk relegating key elements of competitive assessment—such as closeness of competition, entry and expansion, buyer power, repositioning, and efficiencies—to "second-class" considerations. Worse, the burden of proving these factors would likely fall on the merging parties.
- A return to market definition battles. If presumptions are tied to concentration thresholds, parties would have every incentive to re-litigate market definition, as was common before the 2004 guidelines. Factors like closeness and entry would be shoehorned into market-definition debates, making the exercise determinative once again.
Structural presumptions are only acceptable at very high thresholds (75–80% market share) and would risk distorting merger control if applied at lower levels (e.g., 40–50%). The Commission confirmed that the current exploration is limited and aimed at testing whether presumptions could improve predictability, rather than signaling a shift in enforcement.
Paul Cuomo, partner at Baker Botts (Washington DC) noted that while presumptions are written into the U.S. merger guidelines—30% market share as a presumptive problem, HHI thresholds, and so on—in practice, they are not determinative. The real work in merger cases is almost always elsewhere: competitive dynamics between the parties, potential entry, efficiencies, and the broader evidence that shapes the outcome of non-routine deals.
Article 22 EUMR, below thresholds mergers and call-in
powers
The panel turned to Article 22 EUMR, an unavoidable topic in any merger control discussion. Matthew Levitt, partner at Baker Botts highlighted two dimensions:
- Procedurally, the Illumina/Grail judgment has triggered a proliferation of national call-in powers, creating legal uncertainty. With the Nvidia appeal pending, the Court would soon need to decide whether this system simply replicated—and even multiplied—at national level the very uncertainty the Court had objected to at the EU level.
- Substantively, the question is whether it really matters. Are there genuinely problematic mergers below EU or national thresholds that deserve review? And if so, does that small number of cases justify the uncertainty businesses now face, knowing that sub-threshold deals can still be called in?
Wilpshaar challenged the notion that uncertainty was as great as critics suggest noting that in practice companies increasingly make use of Article 4(5) EUMR, which allows them to seek jurisdiction at EU level from the start. Nvidia/RunAI is a good example of why Article 22 matters and helps fill a genuine "enforcement gap." From an in-house perspective the possibility of call-in and referral had "a chilling effect on investment." Telefónica's internal deal teams that once had clear answers on what merger authorizations were needed in Europe now face uncertainty. Cuomo noted that the current European experience had similarities to the U.S. The Hart-Scott-Rodino process is a clearance mechanism, not an approval one. Even if DOJ or FTC clear a deal, states or private plaintiffs can still challenge it.
US antitrust Perspective
Cuomo reflected on U.S. merger control under the new Trump administration, contrasting today's situation with the early years of the first Trump administration. This time, leadership is in place much earlier: Gail Slater, Assistant Attorney General for the Antitrust Division, was confirmed with bipartisan support in March and Andrew N. Ferguson, 57th chairman of the FTC took office in January. Both have promised vigorous enforcement without being "anti-merger or anti-private equity." Early termination is back for non-problematic deals, agencies are more transparent, and settlements are again an option for fixing issues rather than blocking deals outright.
On transatlantic cooperation, it is too soon to judge but the FTC's handling of recent cases which are also under review by the Commission may signal a shift: the focus might turn on enforcing only U.S. law and recognizing the U.S. market's specificities. This would offer a refreshing contrast to regulators who treat divergent markets as 'the same story.' While cooperation is valuable, it requires restraint to avoid unnecessary burdens and abuse.
Cuomo then turned to the Commission's Phase II review of Liberty Media's acquisition of Dorna/MotoGP, where Baker Botts represented Liberty and F1. With a 2006 precedent blocking a similar deal, he said the burden was on the parties to show the world had changed. "Sports markets had changed, entertainment markets had changed," and the parties presented the case as part of a broader sports ecosystem, not just motorsports. Wilpshaar noted while the case appeared to hinge on market definition, it required far deeper inquiry which justified a Phase II review: the Commission engaged with broadcasters, ran surveys, analyzed viewership data, and reviewed internal documents to test whether F1 and MotoGP saw each other as close competitors. In the end, the evidence showed the two sports faced broader competitive constraints, allowing the merger to proceed.
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