Sustainability Considerations in EU merger control

Journal of Antitrust Enforcement, 2025

As the European Commission (EC) prepares to revise its Horizontal and Non-Horizontal Merger Guidelines, it faces the challenge of balancing the imperatives of preserving competition, encouraging innovation, and integrating sustainability objectives. How it will do so is unclear, and it may well be a significant milestone in the tenure of Teresa Ribera, the EC’s Executive Vice-President (EVP) for a Clean, Just and Competitive Transition. In an article published in the Journal of Antitrust Enforcement, Analysis Group Vice President Joshua White and Associate Claire Paoli and coauthor Jay Modrall of Norton Rose Fulbright consider several issues around how the EC’s task might be accomplished, and the possible consequences.

In the article, “Sustainability Considerations in EU merger control,” Mr. White, Ms. Paoli, and Mr. Modrall examine the EC’s decisional practice and economic evidence around integrating sustainability benefits into merger assessments. They discuss how sustainability considerations have emerged as a parameter of competition in market definition and competitive assessments, potentially disadvantaging transactions between parties that advance sustainability objectives. The authors consider whether the current framework for the “efficiency defence” can accommodate sustainability considerations, and how revisions to the Merger Guidelines could enable a more balanced assessment of a transaction’s potential benefits and harms. Drawing on both legal and economic analysis, the authors argue that the Commission’s treatment of sustainability considerations as efficiencies should evolve to reflect modern economic tools and evidence.

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Authors

Modrall J, Paoli MC, White J