In the run-up to the consultation, the BDI had specifically called on the European Commission to systematically take into account the long-term effects of a merger on overarching aspects such as competitiveness, resilience, and innovation in its assessment, and to place greater emphasis on potential efficiency gains. These concerns have been addressed by the Commission in its new draft of the Merger Control Guidelines, published for consultation at the end of April 2026. However, there are still discrepancies between the overarching guiding principles of the new guidelines and their implementation in the operational chapters, for example with regard to demonstrating efficiency gains.

The Commission’s Expanded Assessment Framework

The draft guidelines represent a clear departure from the approach of the previous guidelines, which focused primarily on immediate effects on consumer prices. The Commission now explicitly recognizes non-price-related and longer-term aspects such as quality, choice, investment, innovation, and sustainability as potentially relevant competition parameters. It is worth noting positively that the Commission emphasizes in the draft guidelines that industrial scale and economies of scale can promote competition—for example, by strengthening global competitiveness or mitigating innovation risks. Competition-promoting scaling is distinguished from critical market power. Factors such as the resilience of supply chains, the security of critical infrastructure, and access to critical inputs are also now taken into account.

Focus on Innovation

A key issue in merger control law in recent years has been the critical view of “killer acquisitions.” This term refers to corporate takeovers in which larger, established companies specifically acquire emerging, innovative firms with the aim of eliminating potential competition at an early stage. In the new guidelines, the Commission is now seeking to counter this by creating positive incentives and facilitating startup acquisitions through a new “Innovation Shield.” According to these guidelines, acquisitions of small, innovative companies are generally unproblematic, provided certain conditions are met. This can support scale-up strategies and industrial innovation ecosystems.

“Theory of benefit” and “Theory of harm”

The draft also explicitly addresses another key concern of the industry—greater recognition of potential efficiency gains resulting from a merger, e.g., in terms of sustainability, investment, or resilience. In the future, the “theory of benefit” is to be assessed on an equal footing with the “theory of harm” and form an integral part of the overall assessment. In addition to direct efficiency gains, dynamic efficiency gains are also to be taken into account—such as those that promote innovation or investment in the long term—provided they are plausible and verifiable and lead to concrete benefits for consumers in the relevant market. There is still room for improvement in the draft guidelines in this regard, as despite the proclaimed symmetry between harm and benefit assessments, efficiency gains continue to be subject to significantly stricter requirements than the demonstration of potential harm to competition. For the Commission to recognize the proposed “theory of benefit,” companies must, in any case, engage in early, targeted preparation and compile robust internal documentation.

Not Just Relaxations

The new guidelines not only provide relief for future mergers but also include a detailed overview of possible harm theories. The Commission uses these to assess the potentially anti-competitive effects of a proposed merger, which may ultimately lead to a prohibition of the transaction or the imposition of conditions. In its draft guidelines, the Commission also addresses new theories of harm. These include, among other things, the assessment of negative effects resulting from reduced competition in innovation or investment, from the consolidation of a dominant market position, or from access to sensitive business data. With regard to these new theories of harm, it is important to critically examine whether the existing case law is already sufficient to warrant codification in the guidelines. Without clear limitations and guidelines for the individual theories of harm, as well as necessary safe harbors, the risk of intervention—and, consequently, legal uncertainty and the bureaucratic burden on companies—could increase overall.

Where is merger control headed?

The new guidelines will shape the EU’s competition landscape in the coming years. They will also influence national merger control practices in EU member states and could, furthermore, serve as a potential blueprint for competition regimes in third countries.
The new guidelines give companies greater leeway to justify mergers; the topic of “European champions” is once again coming to the forefront; and the ubiquitous discussion about the European Union’s competitiveness and resilience has now officially found its way into competition policy. At the same time, the Commission emphasizes that the new guidelines do not grant a free pass for mergers: competitive effects will continue to be rigorously examined, and in some cases even more intensively. Furthermore, the Commission retains considerable discretion when weighing pro-competitive and anti-competitive effects.

The greater flexibility resulting from the inclusion of dynamic effects and expanded competition parameters creates a tension with the equally necessary legal certainty and predictability of merger control decisions. Here, the Commission will have to strike a difficult balance. The final guidelines are expected to be adopted by the end of 2026. The first case decisions under the new guidelines are eagerly anticipated.