EU Merger Guidelines Risk Undermining Legal Certainty, ICLE Warns
BRUSSELS (30 April 2026) — The European Commission’s draft Merger Guidelines, released for public consultation, promise an ambitious overhaul but risk undermining the legal clarity firms need, said Dirk Auer, director of competition policy at the International Center for Law & Economics (ICLE).
The draft Guidelines—set to replace the 2004 Horizontal and 2008 Non-Horizontal Merger Guidelines—introduce a sweeping analytical framework that incorporates innovation, investment, resilience, sustainability, security of supply, digital ecosystems and labour-market effects into every merger review. While the Commission says the changes aim ‘to increase legal certainty and predictability’ and ‘facilitate business and investment decisions within the internal market’, Auer warned the opposite may result.
The proposal expands the range of potential anticompetitive effects, including loss of innovation competition, entrenchment of dominance, dynamic foreclosure and portfolio effects—many of which rely on forward-looking, qualitative assessments. Market power would be judged using a broad mix of structural indicators, price sensitivity, margins, barriers to competition, ‘dynamic competitive potential’ and additional countervailing factors.
Efficiencies are divided into ‘direct’ and ‘dynamic’, each subject to tests of verifiability, merger specificity and consumer benefit. How these standards apply to non-price factors such as resilience and sustainability, however, remains unclear. At the final balancing stage, the Commission retains a ‘margin of discretion’ to weigh competing considerations.
Auer said the result is a framework broad in ambition but thin in practical guidance:
The Guidelines try to do everything at once—police market power, accelerate innovation, secure supply chains, strengthen European competitiveness, advance sustainability and align merger control with industrial policy. As the list of factors grows, the number of cases where firms can predict outcomes with confidence shrinks. It is a standing invitation to litigate, rather than what guidelines should offer: some legal certainties. If the Commission is serious about promoting procompetitive mergers and advancing the Draghi agenda on European competitiveness, the next draft needs fewer ambitions and clearer rules.
The draft is now open for public consultation ahead of adoption. The Commission is inviting stakeholder input before the Guidelines take effect for mergers notified from the date of entry into force.
To arrange an interview with Auer, contact Jim Fellinger at [email protected].
About ICLE
The International Center for Law & Economics is a nonprofit, nonpartisan research center working with a roster of more than one-hundred academic affiliates and research centers from around the globe. ICLE scholars promote the use of law and economics methodologies to inform public policy debates.