On 30 April 2026, the European Commission published a proposal for new merger guidelines (“Merger Guidelines”, hereinafter “the Guidelines”). It is the most extensive revision of European rules on the control of mergers between competitors in the last twenty years. The draft Guidelines respond to market changes, the growing importance of innovation and technological development, as well as the changed geopolitical environment. The new Guidelines also represent a significant shift in the European Commission’s existing approach to merger control, particularly towards a more dynamic and economically broader assessment of the impacts of transactions. We summarise what these Guidelines entail in this article.
General remarks on the role of the European Commission and the importance of merger control
The European Commission is the executive body of the European Union and, at the same time, the main body responsible for protecting competition at this level. In the field of competition law, it has powers that include the supervision of cartel agreements, the abuse of a dominant position, and the control of mergers between competitors. Merger control represents one of the most important tools for protecting competition in the single European market.
The European Commission assesses transactions with a Union dimension, i.e., mergers of undertakings whose effects may extend beyond the borders of individual Member States. Its task is to prevent the emergence of market structures that could lead to the creation or strengthening of market dominance and, consequently, significantly distort effective competition within the European Union.
The Guidelines do not constitute a separate legal act but rather a methodological document explaining how the Commission will apply existing competition rules when assessing mergers. The Guidelines build primarily on Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (“EC Merger Regulation”) and replace the previous guidelines on horizontal and non-horizontal mergers, which were adopted in 2004 and 2008 and have long formed the basis of the European approach to merger control. The aim of the new rules is to increase legal certainty whilst reflecting changes in the economic and technological environment in recent years.
Greater emphasis on the benefits of mergers
The European Commission’s previous decision-making practice has focused primarily on identifying the negative effects of mergers on competition. However, the draft Guidelines also place greater emphasis on the positive effects of transactions. The European Commission now explicitly states that mergers can contribute to growth, innovation, a more efficient allocation of resources, or the development of new technologies.
This brings a broader economic assessment of transactions to the fore. The parties to the merger will have to demonstrate more actively the economic benefits arising from the merger of competitors. However, these benefits must be verifiable, directly linked to the specific transaction, and, at the same time, benefit consumers. In this context, the Guidelines distinguish between direct and dynamic economic benefits of a merger. Direct benefits may include, for example, economies of scale, cost reductions, or more efficient use of infrastructure. Dynamic benefits, on the other hand, include the promotion of innovation, technological development, or an increase in companies’ investment capacity.
The Commission also emphasises that the assessment of benefits will be carried out as part of a so-called balancing test, i.e., weighing up the positive and negative effects of the transaction. The more serious the negative effects of the merger on competition, the more significant and convincing the claimed benefits will have to be.
Dynamic assessment of the impacts of transactions
The draft Guidelines also significantly expand the range of factors that the Commission will consider when assessing mergers. In addition to the traditional assessment of price effects, it will now focus much more on the long-term and structural effects of transactions. The Commission will assess the impact of mergers on innovation, investment, the ability of firms to grow, and the resilience of supply chains.
Non-price parameters of competition are also set to play a significant role. The Guidelines explicitly mention, for example, the quality of products and services, consumer choice, production capacity, investment, privacy protection, sustainability, and security of supply. This approach reflects the fact that the effects of a merger between competitors may not be limited to the price sphere but may fundamentally influence the functioning of the market over the longer term.
The Guidelines also confirm that the Commission will adopt a dynamic approach focused on future market developments when assessing transactions. The assessment will therefore not be limited to the current state of the market, but will also consider future market developments, technological changes, the expected entry of new competitors, or changes in consumer behaviour.
Support for innovation and protection of start-ups
A significant new feature of the draft Guidelines is the introduction of a so-called “innovation shield” for mergers involving small innovative enterprises, start-ups or projects in the research and development phase. The European Commission states in the draft that, as a rule, it will not find such transactions to constitute a significant impediment to effective competition (“SIEC”), whether from the perspective of innovation, potential competition, or the crowding out of competitors from the market.
Under the proposed rules, transactions involving start-ups or research and development projects would generally not be blocked, provided that certain conditions are met. For example, where there is an overlap between one party’s research project and the other party’s existing activities, the combined market share of the parties to the merger must not exceed 40 %, and at the same time, there must be at least three other independent competing projects on the market with comparable competitive potential.
The draft Guidelines also stipulate that even if the above conditions are not met, the transaction may still fall under the regime of increased tolerance towards innovative transactions (“innovation shield”) provided that the acquirer is not the largest competitor in the relevant market or a so-called “gatekeeper”.
With this approach, the Commission is responding to long-standing criticism that overly restrictive merger control may hinder investment in innovative companies and restrict funding for technological development. At the same time, however, the Guidelines retain the possibility of intervention in cases where a merger would lead to the removal of significant innovative pressure or a restriction of future technological competition.
Expansion of harm theories
In addition to placing greater emphasis on the benefits of a merger, the draft Guidelines also expand the range of situations that may be considered problematic from a competition perspective. The European Commission elaborates in greater detail on the various “theories of harm”, i.e. the mechanisms through which a merger of competitors may lead to a significant distortion of effective competition.
Greater attention is now being paid to the impact of mergers on labour markets. The Commission acknowledges that a merger between competitors may lead to a reduction in competition among employers, which may have a negative impact, for example, on wages, working conditions, or employee mobility. Although this area has not yet been given much emphasis in European regulatory practice, the draft Guidelines suggest inspiration from developments in competition law in the United States.
Another significant area is access to commercially sensitive information of competitors. The Commission draws particular attention to the risks associated with vertical relationships, digital platforms or joint ventures, where access to competitors’ strategic data may occur. Such access may weaken competitive pressure in the market or facilitate coordination between competitors.
The Guidelines also address in detail the issue of market foreclosure at both the horizontal and vertical levels. The Commission will assess not only a competitor’s ability to foreclose rivals, but also the economic incentive to do so and the likely effects on competition.
The protection of innovation-driven competition and the prevention of the entrenchment of dominance will also play a significant role. Transactions that do not immediately lead to a significant increase in prices but which, in the long term, weaken the competitive structure of the market or prevent the entry of new competitors may therefore also be problematic.
Geopolitical context of the new rules
The draft Guidelines also reflect the changed geopolitical environment and the growing emphasis on the strategic resilience of the European market. The Commission expressly emphasises that merger control should contribute not only to the protection of competition, but also to the competitiveness, resilience, and technological sovereignty of the European Union.
When assessing mergers, new considerations will include, for example, the impact of transactions on the security of supply chains, the ability of companies to invest in critical technologies, or the resilience of European industry to geopolitical shocks. In this context, the Guidelines explicitly mention, for example, the defence industry, critical infrastructure, digital technologies, and cybersecurity.
At the same time, the Commission emphasises the importance of creating companies capable of competing globally, particularly against major players from the United States and China. Transactions enabling European companies to achieve the necessary scale of production, research or investment to operate in global markets may thus be viewed positively. At the same time, however, the Commission points out that support for European competitiveness must not lead to the creation or strengthening of market dominance that would harm the competitive environment within the European Union.
This shift represents a certain departure from the traditionally narrow economic conception of competition law towards a broader strategic assessment of the functioning of the European market. At the same time, however, it raises questions regarding the degree of legal certainty and the predictability of the Commission’s future decision-making practice, particularly if geopolitical or industrial policy factors come to play a more significant role in competition assessments.
Conclusion
The proposed revision of the merger guidelines represents a significant change in European competition policy. The new approach combines the protection of competition with a greater emphasis on innovation, investment, market resilience, and the long-term competitiveness of the European economy. The assessment of mergers between competitors is thus shifting from a predominantly static evaluation of market shares towards a more comprehensive and dynamic economic assessment of the impacts of transactions.
From a practical perspective, it can be expected that the new Guidelines will lead to an increased emphasis on economic analyses, internal company documents, and arguments concerning the economic benefits of mergers and the broader strategic impacts of transactions. At the same time, it can be anticipated that certain transactions will face greater regulatory scrutiny, particularly in the technology, digital, pharmaceutical, or defence sectors.
A public consultation on the draft Guidelines is currently underway and will run until 26 June 2026. The European Commission expects the final version of the Guidelines to be ready by the end of 2026. If the Guidelines are adopted in their proposed form, they could fundamentally influence the way transactions are prepared and assessed in the European market and significantly transform existing European decision-making practice in the field of merger control.
Please do not hesitate to contact us if you have any questions on this topic.
Mgr. Martin Heinzel, partner – heinzel@plegal.cz
Anna Němcová, legal assistant – nemcova@plegal.cz
Tereza Hrudková, legal assistant – hrudkova@plegal.cz
28. 5. 2026