Beyond Antitrust: Mapping the New Regulatory Risk in European M&A

1. The Dynamic of Digital Markets Enforcement

The Gazette: With the European Commission shifting from legislative drafting to rigorous enforcement of the Digital Markets Act, what do you see as the biggest structural challenge for global corporations adjusting to these new competition benchmarks?

Alexandra Rogers: I think the biggest challenge is that digital regulation is no longer simply a legal compliance exercise: it is increasingly shaping how companies design their products, structure their businesses and compete.

Companies still face traditional ex post competition enforcement against abuses of dominance and cartels, alongside merger control that is increasingly interested in transactions below conventional notification thresholds, particularly acquisitions involving innovative or emerging competitors and digital ecosystems.

But they must now overlay that with the GDPR, DMA, DSA and AI Act. The DMA is particularly significant because its ex ante obligations encourage companies towards a “compliance by design” approach. Compliance can no longer sit principally with the legal team; it increasingly needs to be embedded in product development, engineering, IT and day-to-day commercial decision-making.

And there is a genuine tension between regimes to grapple with. Data protection rules may restrict how information is collected, used or disclosed, while the DMA may require greater openness, access or transparency. For global businesses, the challenge is therefore not just regulatory complexity. It is designing products and business models that can satisfy multiple regulators, across multiple jurisdictions, at the speed at which both technology and enforcement are evolving.

2. The Evolution of ESG Compliance and Supply Chains

The Gazette: As EU corporate sustainability mandates become deeply integrated into antitrust and trade frameworks, how can multinational firms successfully balance cross-border growth with Europe’s stringent green standards?

Alexandra Rogers: For multinational companies, the green transition creates a paradox: sustainability can be a source of competitive advantage, but the rules designed to promote it can also constrain how companies grow and cooperate.

European sustainability requirements remain demanding, even as the European Commission moves to simplify parts of the framework. Companies within scope of the CSRD and CS3D increasingly need to understand not only their own activities, but ESG risks across their supply chains. That can be burdensome, but it can also become a competitive advantage for businesses able to demonstrate resilient and sustainable supply chains.

The interesting tension is that achieving sustainability objectives can require companies to work together. Competitors may, for example, need to develop common standards or tackle problems that no individual business can address effectively on its own. But cooperation between competitors immediately raises antitrust considerations. The Commission’s revised Horizontal Guidelines provide useful guardrails for sustainability cooperation, and its willingness to offer informal guidance on novel projects can provide additional legal certainty. The key point is that sustainability can inform the competition analysis, but it is not a licence to restrict competition.

That intersection between sustainability policy, regulation and traditional antitrust principles illustrates how competition law is evolving - and is also part of what makes this such an exciting time to be a competition lawyer. Lawyers are increasingly being asked to grapple with questions that would previously have sat well outside conventional antitrust analysis. There is also a potentially positive side to this evolution, with sustainability benefits increasingly forming part of the debate around the future development of EU merger control.

For multinationals, the answer is therefore not to treat ESG, competition and trade compliance as separate exercises. They need an integrated strategy that maps their position in global supply chains, understands where they have market power, and builds sustainability considerations into commercial decision-making from the outset. The companies that do this well will be better placed not simply to comply with Europe’s green standards, but also to build business practices that support their long-term growth strategy.

3. Strategic Advocacy and High-Stakes Regulatory Reviews

The Gazette: As traditional antitrust law increasingly intersects with economic protectionism and wider public policy goals in Brussels, how must major businesses evolve their legal strategies to remain proactive during complex European regulatory checks?

Alexandra Rogers: The biggest change is that regulatory strategy can no longer stop at the boundaries of competition law. A transaction may make perfect sense from an antitrust perspective and still run into difficulties because of concerns around foreign subsidies, national security, economic security or industrial policy.

That means businesses need to identify these issues much earlier. Alongside traditional antitrust and merger control, companies now have to think about the FSR, national FDI regimes, trade defence and the broader industrial-policy environment. In merger control itself, there is also a growing debate about the role that issues such as innovation, resilience and European competitiveness should play.

For companies doing M&A in Europe, that changes the nature of the exercise. It is no longer enough to ask, “Can we get antitrust clearance?” The better question is, “What are all the regulatory and political lenses through which this transaction will be viewed?” The same transaction may face merger control and FSR review at EU level, alongside FDI scrutiny in several Member States.

What I find particularly interesting as a competition lawyer is how much our role has evolved. Technical antitrust expertise remains fundamental, but increasingly the real value lies in seeing the bigger picture and helping clients anticipate how competition policy, economic security and broader political considerations may come together in the context of a particular transaction.

That requires a much more integrated and anticipatory approach. Legal, government affairs, economic and commercial teams need to work together early to map the risks, identify potential political sensitivities and, importantly, develop a coherent narrative about the transaction and its benefits across the different review processes.

Ultimately, the goal is no longer simply to secure antitrust clearance. The companies that navigate this environment best will be those that understand the wider policy landscape before they enter the regulatory process, rather than trying to respond to it once they are already in it.