EU merger control in changing times

In 2026, the revision of the European Commission’s merger control guidelines, which have been in force since 2004, will proceed and an initial draft is likely to be made available for public consultation. One of the main points under consideration is the extent to which digital business models, innovations and security aspects can and must be taken into account in the context of merger control. Another focus will be in the area of defence and artificial intelligence. Furthermore, it is to be expected that post-Illumina/Grail questions relating to referrals of concentrations by (non-competent) national authorities under Article 22 of the Merger Regulation to the European Commission will arise, particularly in connection with new “call-in” powers of national authorities.

Revision of the Merger Control Guidelines

In 2025, the European Commission set out to modernise the guidelines on the assessment of horizontal and non-horizontal mergers, which have been in force since 2004 (together the “Guidelines”). The aim of the revisions is to pay more attention to new economic realities and innovations when assessing concentrations. One suggestion for simplifying merger reviews is to introduce presumptions for undertakings with certain market shares. The Guidelines will also be updated to reflect digital ecosystems and innovative business models such as platforms.

Defence and artificial intelligence in the spotlight

In its “White paper for European defence – Readiness 2030” (see our Noerr Insights) published in March 2025, the European Commission already addressed the strengthening of the European defence sector. When revising the Guidelines, it is also examining whether concentrations can contribute towards strengthening defence and security. At the same time, the European Commission has to ensure in relation to merger control that no problematic market concentrations and resulting price increases occur. In the coming year, the European Commission will also be dealing with topics involving artificial intelligence (see our Noerr Insights) such as the infrastructure of cloud computing services.

Case law in light of Illumina/Grail

It will be interesting to see how the considerations in the judgment of the Court of Justice of the European Union in Illumina/Grail (see our Noerr Insights) will be applied to the case of Nvidia vs Commission (action of 10 January 2025, T-15/25) in the coming year. The European Commission has accepted the Italian competition authority’s request for a referral in relation to a proposed merger by Nvidia concerning an AI start-up. Due to the start-up’s turnover, neither the thresholds of the Merger Regulation nor those of Italian merger control were met. However, the Italian authority nevertheless referred the merger to Brussels on the basis of national “call-in” powers. The action brought by Nvidia before the General Court of the European Union is primarily based on an allegedly unlawful interpretation by the European Commission of Article 22 of the Merger Regulation and on a violation of the principles developed in the Illumina/Grail judgment on the limits of the possibilities of national authorities without the required competence to refer cases.

This article is part of the Competition Outlook 2026. You can find all Competition Outlook articles here.