Merger Guidelines for the Industrial Policy Curious
The European Commission published its draft “guidelines on the assessment of mergers under Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings” yesterday. The title does what titles of merger guidelines usually do: it lowers expectations. That is useful misdirection. The document itself is anything but dull.
The draft guidelines span more than 100 pages and raise a host of issues. This post zeroes in on one that should give competition lawyers pause: the quiet politicization of competition law through soft-law instruments that sidestep—and ultimately erode—the coherence of established frameworks.
On the surface, the document updates the European Union’s merger-review framework. Read more closely, and a different project emerges: a systematic effort to advance industrial policy through competition law, dressed up as technical refinement.
What follows breaks down how the guidelines do this, the mechanisms they deploy, and why that trajectory should concern you.