The New EU Merger guidelines, a turn in the right direction?

On 30 April 2026, the European Commission published the draft of its new EU Merger Guidelines, (“Guidelines”) aimed at modernising and strengthening the EU merger control framework. The Guidelines are aiming to replace the existing Horizontal Merger Guidelines from 2004 and the Non-Horizontal Merger Guidelines from 2008. Given that the current guidelines have been in force for more than two decades, their revision comes as a necessary response to significant changes in global markets, technological development, digitalisation, and shifting geopolitical dynamics. The structure of modern markets, particularly in the digital, pharmaceutical, energy, and technology sectors, has evolved considerably since the adoption of the existing framework. As a result, the Commission seeks to adapt its analytical approach to contemporary economic realities and enforcement priorities.

This article outlines the content of the Guidelines, analyses their key novelties, and examines their potential implications for future merger assessments both at EU level and within the Slovenian competition law framework.

What are EU Merger Guidelines and why are they important?

The EU Merger Guidelines establish the analytical framework and standards used by the European Commission when assessing whether concentrations are compatible with the internal market under the EU Merger Regulation (“EUMR”).  They apply both to concentrations with an EU dimension and to transactions referred to the Commission by Member States. The Guidelines explain how the Commission evaluates the potential competitive effects of mergers, acquisitions, and joint ventures, as well as the circumstances in which a transaction may significantly impede effective competition within the European Union. They also provide guidance on the types of remedies that may be required where a transaction raises competition concerns. In addition, the Guidelines clarify the circumstances under which Member States may exercise their powers under Article 21 EUMR to protect legitimate interests by blocking or imposing conditions on mergers with an EU dimension.

The practical importance of the Guidelines should not be underestimated. Any transaction that may fall within the scope of EU merger control should be assessed in light of the principles set out in the Guidelines, as they offer insight into the Commission’s enforcement priorities, analytical methods, and interpretation of key competition law concepts. This is particularly important because the application of EU competition law standards in practice can often be complex and difficult to predict. The Guidelines therefore play a crucial role in increasing legal certainty for businesses and legal practitioners by clarifying how the Commission is likely to approach specific types of transactions and market structures. Moreover, the Guidelines are grounded in the case law of the EU Courts and the Commission’s decisional practice, making them an essential source for understanding the current direction of EU merger enforcement policy.

Guiding principles 

The legal nature of the Guidelines is particularly important, as they are binding on the European Commission. This means that, in its assessment of concentrations, the Commission cannot depart from the principles and standards set out in the Guidelines without providing adequate justification.

One of the most significant developments introduced by the Guidelines is the express reference to the EU’s broader policy objectives in merger assessment. In practice, this signals a shift towards a more comprehensive and economically nuanced analysis of transactions. Greater emphasis is now placed on factors such as the resilience of supply chains, the promotion of innovation, the diversification of sources of supply for critical technologies, and the overall robustness of the internal market. Accordingly, the Commission’s assessment will no longer focus predominantly on market shares and traditional structural indicators, but increasingly on the actual economic effects of a transaction.

The Guidelines expressly recognise that a certain degree of consolidation may generate benefits in terms of scale, investment capacity, innovation, and economic resilience. In this regard, particular importance is attached to understanding both the strategic rationale of the transaction and the business model underlying the merger.

The introductory section of the Guidelines sets out several guiding principles, intended to serve as a conceptual framework for the Commission’s merger assessment. These principles provide insight into the analytical structure and priorities of the Commission’s review process. 

1. Parameters of Competition; The Guidelines distinguish between price and non-price parameters of competition, both of which may be affected by a concentration. While price effects remain central to merger analysis, the Guidelines places considerably greater emphasis on non-price parameters, which are often broader and more difficult to quantify. Burden of proof, theories of harm and benefit; these principles set the procedural standards of merger effect assessment. These include factors such as: quality and consumer choice, production capacity, investment incentives, innovation, privacy and data protection, sustainability, and economic resilience.
2. Burden of Proof, Theories of Harm and Benefits; The Guidelines further clarify the procedural standards governing merger assessments. In particular, they address the burden of proof applicable to the Commission’s analysis and the different theories of harm that may arise from a transaction. Importantly, the Guidelines also acknowledge that mergers may generate efficiencies and broader economic benefits, which must be taken into account alongside potential anti-competitive effects.
3. Evidence; The Guidelines outline the types of evidence that may be relied upon when assessing the likely impact of a concentration, including internal documents, economic analysis, market studies, customer feedback, and empirical data.
4. Overall assessment of merger’s impact, including their benefits; The Commission’s assessment is ultimately based on a comprehensive balancing exercise, weighing the potential negative effects of the merger against its possible efficiencies and benefits.
5. Causality between the merger and the competitive effects; Finally, the Guidelines emphasise the importance of establishing a causal link between the concentration and the identified competitive effects. To do so, the Commission compares the likely state of competition before and after the transaction in order to determine whether the merger itself is responsible for the observed market changes. 

Taken together, these guiding principles consolidate both existing and newly developed standards for merger assessment. They provide valuable insight into the Commission’s analytical methodology and offer businesses and practitioners a clearer understanding of the rationale underpinning EU merger control enforcement.   

Competitive assessment and Anticompetitive effects

The primary goal of the merger clearance procedure is to determine whether a transaction may result in a significant impediment to effective competition (“SIEC”). The Guidelines set out the principal metrics and parameters for conducting such an assessment. 

The first metric is the market power of the parties to the merger. However, the Guidelines specifically emphasise that market power should not be viewed as a static concept, but rather as a dynamic capability that must be assessed in light of broader market developments. In this regard, the Commission is instructed to adopt a more flexible and economically nuanced understanding of market dynamics. The assessment of market power therefore requires particular attention to the characteristics of the relevant market, including the size of the parties’ market shares, market volatility, the frequency and nature of transactions on the market, and other indicators reflecting the dynamic structure of competition. While market share continues to represent one of the central indicators of market power, the Guidelines introduce several additional parameters that should be taken into account, such as price sensitivity, profit margins, and barriers to competition. Special emphasis is placed on barriers to entry and expansion. The Guidelines provide a more detailed analysis of the factors limiting customer switching possibilities, as well as the structural, technological, regulatory, and economic barriers that may prevent competitors from entering or expanding within the market.

The defining novelty of the Guidelines lies precisely in this increased emphasis on dynamic competitive parameters. In certain sectors, especially innovation-driven and technology-intensive markets, factors such as innovation capacity and investment potential may be considerably more relevant than a purely static assessment of existing market power.

At the same time, the Guidelines provide a detailed framework for assessing anticompetitive effects arising from concentrations. These effects may be direct, such as the loss of direct competition between the merging parties, or more dynamic and long-term in nature, such as reduced investment incentives or diminished innovation. The Guidelines identify several categories of anticompetitive effects, including loss of head-to-head competition, loss of investment and expansion competition, loss of innovation competition, elimination of potential competition, foreclosure effects, entrenchment of a dominant position, coordinated effects, and other forms of anticompetitive harm. Importantly, the Guidelines recognise the cumulative and compounding nature of these effects. Different types of competitive harm may reinforce one another, resulting in a significantly greater negative impact on competition than each individual effect would produce in isolation.

A particularly welcome addition to the Guidelines is the introduction of the so-called “Innovation Shield”. This mechanism effectively establishes a form of safe harbour by imposing a higher threshold for finding a SIEC in transactions involving research and development projects or small innovative undertakings with significant dynamic competitive potential. Through this approach, the Commission is required to give greater consideration to the innovation and development potential generated by the merger, reflecting the EU’s broader policy objective of fostering innovation, attracting investment, and strengthening competitiveness in an increasingly dynamic global economic environment.

In addition to analysing the negative effects of mergers, the Guidelines also provide a more detailed assessment framework for evaluating the potential benefits generated by concentrations. These benefits effectively operate as a counterweight to the restrictive effects that a merger may have on competition.

EU member states’ measures to protect legitimate interests 

Although the review of mergers reaching the relevant jurisdictional thresholds falls primarily within the competence of the European Commission due to their potential EU-wide impact, Article 21 EUMR preserves certain powers for Member States to intervene in merger proceedings in order to protect legitimate national interests. 

In such cases, Member States must demonstrate the existence of specific risks affecting fundamental societal interests that justify their intervention. The Guidelines further clarify the standards applicable to the assessment of such measures.

In particular, the Guidelines expressly refer to the general principles of EU law, especially the principles of proportionality and non-discrimination. Consequently, any national measure aimed at blocking or imposing conditions on a concentration must be appropriate, necessary, and applied in a non-discriminatory manner.

The effect of the Merger Guidelines on competition law in Slovenia

Although Slovenian merger control has developed its own decisional practice and case law through the activities of the Slovenian Competition Protection Agency (Agencija za varstvo konkurence – “AVK”) and the Administrative Court, Slovenian competition law remains closely aligned with the general principles and standards established under EU competition law.

In practice, both the AVK and Slovenian courts regularly rely on the European Commission’s guidelines and decisional practice when interpreting substantive competition law concepts. For example, the Administrative Court referred to the Commission’s Guidelines on market analysis and the assessment of significant market power under the EU regulatory framework for electronic communications networks and services in case U 2272/2004, while the Guidelines on the effect on trade concept were referenced in case U 1815/2014.

Similarly, the AVK frequently relies on the European Commission’s practice when assessing complex questions arising in national merger control proceedings. An example of such reliance can be seen in decision no. 3061-19/2021-8 dated 22 December 2021, concerning the determination of the relevant market in the motor vehicle sector, where the AVK explicitly referred to the Commission’s decisional practice.

It can therefore be concluded that the European Commission’s practice, particularly in the form of guidelines, has a significant interpretative influence on Slovenian competition law and its enforcement. Consequently, once adopted, the new EU Merger Guidelines are likely to have a direct practical impact on merger assessments before Slovenian competition authorities and courts, and will almost certainly become an important interpretative source in future national competition proceedings.

Conclusion

Although the Guidelines are currently still in the public consultation phase and are expected to be formally adopted by the end of 2027, they already provide valuable insight into the future direction of EU merger control policy. The central takeaway from the Guidelines is the Commission’s increased willingness to place greater emphasis on the positive effects of mergers, particularly in relation to innovation, investment, resilience, and long-term competitiveness. This marks a noticeable evolution from the traditionally more structural and market share-focused approach that has characterised EU merger control in previous decades.

Particularly significant is the introduction of the Innovation Shield safe harbour mechanism applicable to acquisitions involving smaller innovative companies and research-driven businesses. This development may prove especially important in sectors characterised by rapid technological change and innovation-based competition. More broadly, the Guidelines reflect the EU’s wider policy objectives, including the protection of innovation, economic resilience, sustainability, and competitiveness within the internal market. At the same time, they seek to provide greater legal certainty and transparency for companies involved in concentrations subject to EU merger control.

The practical significance of these developments extends beyond the EU level. As demonstrated by the practice of the Slovenian Competition Protection Agency (AVK) and Slovenian courts, European Commission guidelines already play an important interpretative role in national competition law proceedings. Consequently, once adopted, the new Merger Guidelines are also likely to influence merger assessments and competition law practice in Slovenia.

Overall, the Guidelines represent an important strategic and interpretative tool both for businesses considering merger and acquisition transactions and for legal practitioners preparing merger notifications and clearance submissions before competition authorities at both EU and national level.