EU Law and Practice Contributed by: Porter Elliott, Catherine Gordley and Niharika Parshurampuria, Van Bael & Bellis
2023, Commission President Ursula von der Leyen commissioned a report by former president of the European Central Bank (and former Italian Prime Min - ister) Mario Draghi. The report, entitled “The Future of European Competitiveness”, was presented to the European Commission in September 2024 and describes the need to increase European produc - tivity as “an existential challenge” requiring “radical change” in a number of areas, one of which is merger control. This has led DG Comp to open a review of both its Horizontal and Non-Horizontal Merger Guidelines (see 1.1 Merger Control Legislation ). In its review, DG Comp acknowledges that EU merger control may also take into account wider policy considerations such as labour markets, sustainability, and so on. The Com - mission is assessing how these considerations can be better reflected in the updated guidelines, a draft of which was published in April 2026. In addition, in particularly sensitive or high-profile cases, the Commission will often receive lobbying pressure from national governments and third parties, which may have an impact on the overall context in which it views a particular transaction. In a Phase II investigation, the Commission’s decision to clear or prohibit the concentration will be taken by the full Col - lege of European Commissioners. As a result, other broad considerations (eg, employment, environment, energy and growth) may have a limited influence in some merger reviews. The EUMR provides the limited possibility for member states to take action to protect their national secu - rity or other legitimate interests, but such exceptional actions do not form part of the merger control process (see 1.3 Enforcement Authorities ). The Commission has also implemented legislation to establish separate mechanisms to monitor and control foreign invest - ment and subsidies in concentrations (see 9. Foreign Direct Investment/Subsidies Review ). 4.7 Special Consideration for Joint Ventures Full-function JVs are assessed using the same sub - stantive test as all other concentrations – the SIEC test (see 4.1 Substantive Test ).
The Commission may also assess whether such a JV gives rise to so-called “spill-over effects” – namely a risk of co-ordination between the parents in markets where they are both active outside the JV or operate upstream or downstream from one another. The Com - mission will assess any risk of co-ordination between the parent companies under Article 101 of the TFEU, which prohibits anti-competitive agreements between undertakings. 5. Decision: Prohibitions and Remedies 5.1 Authorities’ Ability to Prohibit or Interfere With Transactions If the Commission determines that a notified con - centration will lead to an SIEC, it must prohibit the transaction (see 4.1 Substantive Test ), unless rem- edies are offered that eliminate the Commission’s concerns. The Commission can prohibit transactions without prior approval from the EU courts or any other EU or member state body. Prohibition decisions may be appealed to the General Court (see 8.1 Access to Appeal and Judicial Review ). In practice, prohibition decisions are rare. To date, the Commission has prohibited only 33 transactions since 1990, out of almost 10,000 notified (although 260 noti - fications have been withdrawn, often as a result of the Commission’s objections). Most problematic trans - actions are cleared, subject to remedies designed to eliminate the competition concerns. 5.2 Parties’ Ability to Negotiate Remedies The parties may propose remedies to address com - petition concerns raised by the Commission (see 5.4 Negotiating Remedies With Authorities ). The Com - mission’s 2008 Remedies Notice contains extensive guidance on the legal requirements that remedies must meet (see 5.3 Legal Standard ). Structural Remedies The Commission has expressed a clear preference for structural remedies, especially divestments, as these bring about a lasting change on the market and do not require ongoing oversight.
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