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The revised Merger Guidelines1 (‘Guidelines’) should ensure that the EU merger control framework supports competitiveness, innovation and investment while preserving legal certainty, predictability and effective competition. The Guidelines should remain firmly anchored in the significant impediment of effective competition (SIEC) test, apply resilience and scale considerations in a headquarters-neutral and effects-based manner, and provide clearer analytical and evidentiary standards for resilience assessments and the new theories of harm.

The Guidelines should recognise the benefits of scale where these deliver demonstrable advantages for EU consumers, apply the innovation shield consistently across all acquirers, maintain appropriate safe harbours and ensure a balanced and symmetrical assessment of harms and benefits. The Guidelines should also strengthen predictability across overlapping transaction review regimes and provide greater certainty for both EU and non-EU investors. Together, these refinements would help ensure that merger control contributes to competitiveness, innovation and economic growth while maintaining a transparent and proportionate enforcement framework.

The EU proposed the Foreign Subsidies Regulation (FSR) in 2021 to address foreign subsidies distorting the Single Market. Operating as a screening instrument behind merger control, it requires companies to notify the European Commission of foreign financial contributions (FFCs) they may receive when participating in public procurement or mergers and acquisitions activity. Preventing FFCs from distorting the Single Market is an important goal – and one that must be achieved without creating its own disruptions.

Will Europe choose alignment or fragmentation in foreign investment screening? In a recent blog for fDi Intelligence, Malte Lohan, CEO, and Andrew Hill, Senior Policy Adviser, AmCham EU, examine how divergent national regimes have created legal uncertainty and unnecessary administrative burden for investors and authorities alike. Today’s patchwork encourages over-notification, overwhelms regulators with low-risk cases and introduces avoidable friction for capital. The revised EU Foreign Investment Screening Regulation presents an opportunity to enhance coherence and competitiveness. Its success will depend on consistent implementation across Member States. Convergence would streamline beneficial investment and strengthen the Single Market, while gold-plating risks renewed fragmentation. Read the full op-ed in fDi Intelligence’s Economic Security Watch.