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.
Associated People
Joshua White
Mr White is a consulting and testifying economist who specialises in applying microeconomics and sophisticated econometric modelling to complex litigation and merger-related questions, primarily in matters involving the health care, financial services and technology industries. He has supported clients in various jurisdictions and industries in follow-on competition damages litigation, assessing overcharge, upstream and downstream pass-on and volume effects. He has served as a testifying expert in the UK Upper Tribunal (Lands Chamber), the UK Competition Appeal Tribunal and the Amsterdam District Court on competition cases.
Mr White has supported high-profile companies with complex merger reviews across multiple jurisdictions, including in the Veolia/Suez, LVMH/Tiffany, Sika/MBCC and Eutelsat/OneWeb mergers. He has also provided evidence to the UK’s Competition and Markets Authority (CMA) and the European Commission (EC), including on behalf of clients involved in cartel investigations, abuse of dominance investigations and mergers. Mr White has also provided support to European financial and competition regulators in coordinated conduct investigations.
Mr White has extensive experience addressing competition and intellectual property (IP) issues in matters related to cutting-edge pharmaceutical products and FRAND licensing questions. As part of this work, he has supported a number of scientific and technical experts in front of courts and regulatory bodies. He also regularly supports pharmaceutical clients on competition issues around market access, pricing, denigration and competition from generic manufacturers.
Mr White has worked in a number of jurisdictions, including the UK, the European Union, Switzerland, Australia, New Zealand, South Africa, Canada, Japan, Korea, the Netherlands, Belgium and the US. His writing has been published in an array of journals, including the Journal of European Competition Law & Practice, the Competition Law Journal and the Journal of Antitrust Enforcement, and he regularly speaks at international competition law and policy conferences.