Response to the European Commission Consultation on the Draft Merger Guidelines

The response seeks to ensure that the revised EU Merger Guidelines remain predictable, proportionate and grounded in evidence, while better reflecting the realities of investment-driven and innovation-driven markets.

• Greater legal certainty, predictability and proportionality – We call for clearer safe harbours, rebuttable presumptions and screening tools so that transactions that are unlikely to raise competition concerns can be identified early and assessed proportionately.

• Recognition of the specific characteristics of private capital investors – Merger control should better reflect how PE, VC and infrastructure investments operate in practice, including minority investments, separate fund structures, fiduciary duties and independently managed portfolio companies.

• Evidence-based assessment of broader theories of harm – Concepts such as common ownership, portfolio effects, innovation competition and foreclosure should be assessed on the basis of demonstrable ability and incentive to affect competition, rather than ownership links or assumptions alone.

• A more practical approach to innovation, investment and scale – The revised framework should recognise that acquisitions can support investment, innovation and scaling, while ensuring tools such as the Innovation Shield are clear, workable and predictable in practice.