Promotion of innovation as a criterion for assessing concentrations in the EU

Abstract

Digital transformation and the growing role of innovation-oriented markets have questioned the adequacy of traditional approaches to merger control, which focus mainly on market structure and short-term price effects. The growing importance of inno­vation as a source of competitive advantage has prompted the European Commission (EC) to reconsider how dynamic efficiencies are accounted for in EU merger law. This paper aims to develop the scientific and political discussion on integrating the innovation criterion into merger control by analysing the positions expressed by stakeholders during the European Commission’s 2025 public consultations on the review of the Guidelines for the assessment of horizontal and non-horizontal mergers. The study is based on a combination of doctrinal, comparative-legal, and content-analytical approaches. The evolution of merger control principles in the EU, their interaction with innovation policy and industrial policy have been analysed, as well as a qualitative content analysis of 27 official responses within the Merger Guidelines Review consultation have been conducted. The key areas of discussion have been identified: time horizons of assessment, the presumption of neutrality, the "innovation imperative" ("innova­tion defence"), and the evaluation of vertical and complementary concentrations. The analysis showed a broad consensus among respondents – primarily representatives of the technological, telecommuni­cations sectors, and start-up ecosystems—on the need to develop a more dynamic and innovation-friendly merger control policy. Key offerings include: 1) extending the assessment time horizons to 5–10 years, taking into account long investment cycles; 2) replacing the presumption of harm with a presumption of neutrality or pro-competitiveness; 3) recognising the "innovation imperative" and the possibility for parties to use the "innovation defence" argument; 4) maintaining sepa­rate approaches for horizontal and non-horizontal mergers. Within the evolution of EU competition law, a "fourth generation" of merger control policy is being formed, which combines the protection of competition with the promotion of innovation, sustain­ability, and technological resilience. The predominant representation of innovation-intensive industries among consultation participants indicates that merger policy is becoming a key tool for ensuring Europe’s innovative competitiveness. For Ukraine, approaching this updated model opens up the opportunity to integrate an innovative criterion into the practice of the Antimonopoly Committee as component of its European integration policy.