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The EC recently announced the results of its consultation on the EU’s Horizontal and Non-Horizontal Merger Guidelines.  This Goodwin memo says that the feedback received from participants in the consultation indicates that the EU’s Guidelines need to be overhauled.  This excerpt identifies some of the key themes raised by respondents:

Call for Clearer, Future-Ready Rules: Most respondents found the guidelines unclear and incomplete, requesting more dynamic, forward leaning guidance addressing novel theories of harm, including ecosystems, network effects, and potential competition.

Legal Uncertainty Still Reigns: Many stakeholders viewed the guidelines as falling short on legal certainty and transparency. Larger companies and advisory professionals, in particular, criticised the ambiguity of the existing guidance and called for clearer, more predictable standards.

Innovation Still Under-Reflected: Around two thirds of respondents believed the guidelines do not adequately explain how the European Commission assesses innovation or other dynamic factors, a growing concern in fast moving markets.

Digitalisation Gap: Nearly 4 in 5 respondents said the guidelines lag behind the tech-driven economy and fail to reflect digital market realities.

Sustainability Blind Spot: A strong majority believed the guidelines do not provide clear, correct, updated, and comprehensive guidance on how merger control reflects the transition to a sustainable and climate-neutral economy with clean and resource-efficient solutions.

In addition, the memo reports that almost all respondents agreed that the EU’s framework for assessing market power and dominance needs updating and a majority believed that the framework for assessing efficiencies is too narrow. Most also expressed concern that public policy considerations are insufficiently addressed by the current Guidelines and requested clearer guidance on how national security and defense considerations will be dealt with.

– John Jenkins