In this new episode, Guillaume Loriot (DG COMP) and William E. Kovacic (GWU Law School), in discussion with Séverine Schrameck and Frédéric de Bure (Cleary Gottlieb), opened the Global Merger Control Conference that occurred in Paris on the 26th of June 2026.

If you would like to read more about this conference, see speakers' photos and/or videos, check this page.

KEY TAKEAWAYS

Guillaume LORIOT
Deputy Director General for Mergers, DG COMP, Brussels

Pre-Notification Efficiency Engagement: A New Commission Mindset

- Parties are encouraged to raise efficiency arguments from pre-notification; the Commission can then signal what it will scrutinize most closely.

- Understanding the deal rationale has always been standard practice, but is now pushed more actively in complex or borderline cases.

- Consistency is key: what parties tell shareholders must align with what they present to the Commission.

- Two recent cases illustrate the approach: an aircraft maintenance JV (pooling synergies across global repair sites) and a case in Portugal, where efficiency arguments were engaged with at an early stage.

- In both cases, no competition concerns ultimately arose, but early engagement proved useful regardless, particularly for testing whether the claimed benefits resonated with customers.

- Analysis at this stage is necessarily lighter than in Phase 2, but provides a first market-grounded read on whether the claimed benefits are credible.

- Early engagement is not one-sided: it also disciplines parties to come with a coherent and consistent story, aligned across shareholders, boards, and the Commission.

- The goal is not to facilitate clearance: it is to rigorously assess arguments from the outset, requiring substantiated and internally consistent submissions.

- This shift in mindset reflects a broader reset: the Commission is willing to engage, but expects parties to come prepared with concrete, verifiable elements from the outset.

William E. KOVACIC

Professor, GWU Law School, Washington D.C.

Ex Post Review: Building Institutional Memory in Merger Control

- After-the-fact reviews of agency decision-making are underused and should become standard practice.

- The goal is not to prepare elaborate quantitative studies, but to conduct structured reviews of the reasoning and assumptions that drove decisions.

- Access to internal files reveals where judgment calls were made and what lessons can be drawn for future cases.

- This creates pressure to write honest, substantiated memos at the time rather than retreating into vague generalities.

- Transparency at the time of the decision is what makes ex post review meaningful; you can only learn from what was properly documented.

- The United Launch Alliance clearance illustrates the value: a 2-to-1 deal cleared under DoD pressure, but documented transparently.

- That documentation later proved instructive when assessing what the SpaceX alternative ultimately delivered.

- The SpaceX example shows that documenting risks and alternatives at clearance stage can shape smarter policy choices down the line.

- Ex post review builds institutional memory, particularly valuable as agencies face a growing range of considerations.

- Agencies should ask not just whether a decision was legally sound, but whether the assumptions behind it held up over time.

- The 50th anniversary of Hart-Scott-Rodino this September 30th is a timely moment to ask whether premerger notification still delivers the right information at the right time.

DOCUMENTATION

Sally Evans, Lori Parcel Taubman, Merger Remedies: A Comparison of Recent Developments in the UK, EU and US, 6 March 2026, e-Competitions Merger Remedies, Art. N° 131555.

Alejandro Guerrero, Ombline Ancelin, Riccardo Pennisi, Ekram Belhadj, Martin Gramsch, Pablo Moro Valbuena, Laura Cortés López, The EU Commission adopts guidelines clarifying the application of the Foreign Subsidies Regulation across mergers, investigations and public procurement, 9 January 2026, e-Competitions January 2026, Art. N° 131082.

Théo Mayer, European industrial policy and merger control: The hypothesis of a right of appeal for the Council of the European Union to address the new challenges of globalization, 1 December 2025, Concurrences N° 12-2025 , Art. N° 130220.

Christian Bergqvist, David Bosco, Stephen Dnes, Bowman Heiden, Constance Helfat, Frédéric Jenny, Peter Klein, Nicolas Petit, Luc Soete, David Teece, Designing EU merger policy for competitiveness and growth, 3 November 2025, Concurrences N° 11-2025, Art. N° 129509.

Étienne Chantrel, Alexis Walckiers, Can we afford to keep ignoring out-of-market efficiencies in the merger control guidelines after the Draghi report? Insights from sustainability agreements, 3 November 2025, Concurrences N° 11-2025, Art. N° 128941.

Sergio Baches Opi, Gun jumping in mergers: An overview of EU and national case law, 31 October 2025, e-Competitions Gun jumping, Art. N° 128786.

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