RBB's observations on the EC’s Draft Merger Guidelines

Last week RBB Economics submitted its observations on the European Commission’s Draft Merger Guidelines. 

In our submission, we assess the Draft Guidelines against a single yardstick: whether they strengthen or weaken an effects‑based approach to merger control, by which transactions are assessed according to their likely effects on competition and consumers rather than their structural features. 

Measured against that yardstick, the Draft Guidelines move in the right direction in important respects. They give benefits and efficiencies a more central role in the competitive assessment, and adopt a more dynamic perspective on both harms and benefits. 

In other respects, however, they risk taking the assessment backwards, through a partial return to a more structural, presumption‑based approach. Such a shift would weaken the framework's ability to distinguish the mergers that harm consumers from those that are beneficial or neutral to them. 

Our submission has a constructive aim. We propose specific amendments to the document in order to:

• hold benefits to the same evidentiary standard as harms in practice, not only in theory;

• treat market power and dominance as a factor in the analysis of merger-specific effects, not as a verdict;

• retain a distinct and unified framework for all non‑horizontal mergers and reflect their pro‑competitive potential;

• assess innovation even‑handedly, weighing any loss of innovation competition alongside the interrelated innovation-enhancing effects (such as greater appropriability); and

• keep the guidelines technical and anchored in consumer welfare, leaving politics and objectives unrelated to competition to other policy tools. 

The Commission’s Merger Guidelines are critical for the application of EU merger control. While the published draft clearly represents a substantial effort, we believe that a number of important changes are still required to ensure that merger assessment in Europe remains squarely rooted in an effects-based approach.