It was a pity I couldn't stay until the conclusion of last week's Global Merger Control Forum 2025, organised by Thought Leaders 4 Competition, as every single session offered valuable insights into the rapidly evolving landscape of merger control.

I had the pleasure of moderating the panel on ‘Political and Policy Pressures Shaping Merger Control’ with a distinguished group of experts: Henrik Morch, Kristina Nordlander, Douglas Lahnborg and Dan Donath. 

One theme of our discussion was the impact of industrial policy on merger control. While this is currently a hot topic, it has a significant historical context: already when the EU Merger Regulation (EUMR) was in the making, one camp advocated for the Commission to take into account industrial, social and employment considerations in merger control reviews. As evidenced by the final ECMR, the Commission aligned with the opposing view, and has staunchly resisted political influence on its merger control decisions since the ECMR’s entry into force. However, the recently published Draghi report has reinvigorated this debate and taken it to a new level: the question is no longer whether industrial policy objectives should be considered, but how they should be taken into account!

Our panel also debated the Commission’s plans to overhaul its Horizontal and Vertical Merger Guidelines. You can find a summary of Henrik Morch’s insightful comments here.

The first panel of the day, chaired by Nick Levy, explored the aftermath of the Illumina/Grail decision. Two points that I found particularly thought-provoking were:

• Helen Gornall raised a practical question that many practitioners now face: how you should draft merger control clauses in a transaction agreement to take into account that one or more authorities may decide to investigate the deal (or refer it to the Commission) based on their new call-in powers or on Articles 102 or 101 TFEU. Is it sufficient to include a closing condition stating that the parties are unaware of any authority intending to investigate the transaction? Or should the parties proactively contact all national competition authorities that could take an interest in the case to exclude the risk that the transaction may be challenged and even prohibited after closing? 
• Saverio Valentino put forward an interesting idea: could parties proactively request a referral of the case to the Commission under Article 4(5) ECMR on the basis that at least three national competition authorities have call-in powers allowing them to review the transaction? Or is jurisdiction based on call-in powers not sufficient for an Article 4(5) referral?

With so many questions and evolving frameworks, one thing remains certain: merger control is entering a fascinating new era that will require careful navigation and strategic thinking!

If you need more information or further guidance in this area, please contact Anne Federle.

Anne Federle is a partner in Bird & Bird's Competition Law practice, specialising in complex merger control matters across multiple jurisdictions.

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