Analysis Group Authors Examine Efficiencies in the European Commission’s Draft Merger Guidelines

August 24, 2026

The treatment of efficiencies has become one of the central questions raised by the European Commission’s draft guidelines for assessing mergers under the EU Merger Regulation (the Draft Guidelines). The public consultation on the Draft Guidelines closed at the end of June 2026. In an article for the Kluwer Competition Law Blog, Analysis Group Managing Principal Joshua White and Associate Claire Paoli teamed up with Jay Modrall of Norton Rose Fulbright to examine the extent to which the Draft Guidelines deliver on the European Commission’s promise to better account for the potential benefits of deals in merger assessments.

The authors welcomed the substantial shift in the European Commission’s approach. Notably, the Draft Guidelines outline a “theory of benefit” that is placed, in principle, on an equal footing with theories of harm within a single integrated analysis rather than being treated as a late-stage “defence.” The authors also commended the expanded treatment of dynamic efficiencies relating to investment and innovation.

However, if benefits and harms are to be weighed on an equal footing, the authors suggest three areas for improvement. The first relates to relatively simple changes to improve consistency and conformity, such as taking a more balanced approach to evidence and better integrating sustainability and resilience benefits. The second involves eliminating unnecessary asymmetries between the European Commission’s assessments of harms and benefits. In particular, the authors highlight asymmetries in the types of evidence required and in the emphasis placed on the quantification of harms and benefits.

The final area for improvement concerns two requirements in the Draft Guidelines that the authors note do not derive from EU law and limit the consideration of potential benefits. The authors question the feasibility of the new requirement that efficiencies relate not only to the merging parties’ activities but also to “competition as a whole,” “including rivals’ activities” (paras. 301, 315). They also challenge the Draft Guidelines’ broad exclusion of out-of-market and collective benefits based on an unconvincing analogy to the Horizontal Cooperation Guidelines and case law under Article 101 TFEU. Analysis Group authors previously responded to the European Commission’s Consultation on the Draft Merger Guidelines.