The DIY competitiveness manual for merger control? The European Commission announces overhaul of its horizontal and non-horizontal merger guidelines

Commissioner Ribera yesterday announced the Commission’s plan to revise both its horizontal and non-horizontal merger guidelines. It fires the starting pistol on what will undoubtedly be a closely scrutinized overhaul of the guidelines which were issued in 2004 and 2008 respectively. 

Called for in the Draghi Report, which Ribera described as the Commission’s new Bible, the review itself is no surprise. The announcement has nevertheless provided more colour on what to expect:

• First, in covering both horizontal and non-horizontal mergers, the review goes beyond the recent Competitiveness Compass (see previous blogpost) which had only envisaged a review of the Commission’s horizontal merger guidelines. This makes sense though: the two guidelines will inevitably be interlinked and many of the most contentious merger control cases involved non-horizonal effects. Reviewing only the horizontal guidelines would have risked an awkward policy gap.
   
• Second, the focus on a “more holistic review” of mergers, including their effects on “competitiveness, innovation, resilience”, gives the themes that will run through the review and the clear mission statement that DG Comp are likely to have greater flexibility to clear mergers on the basis of wider market benefits. 

We are, however, also left with a multitude of questions. Will there be parallels with the U.S. 2023 merger control guidelines? How far will parties be able to advance efficiencies to offset potential anti-competitive effects? To what extent will the Commission be more willing to rely on its ex-post toolbox to backstop potential merger concerns? And will there be any mention of how merger control will support European companies scaling in global markets?

All that said, the new guidelines are unlikely to see the light of day in the near future. Whilst the consultation is expected soon, the Commissioner promised a cautious and consultative approach to the announced changes designed to support European businesses in developing relevant industrial solutions across borders. 

We will be following with interest.