Gide advises CISPE in its action for annulment against the European Commission’s decision approving Broadcom’s $65 billion takeover of VMware

Gide is advising the Cloud Infrastructure Services Providers in Europe (CISPE) in its action before the General Court of the European Union seeking the annulment of the European Commission’s decision of 12 July 2023 approving Broadcom’s $65 billion acquisition of VMware.

CISPE, the voice of Europe’s cloud infrastructure providers, argues that  the Commission’s decision failed to properly assess the serious risks to competition posed by that transaction, particularly in the market for server virtualization software.

Indeed, at the time of its review, the Commission had in its possession a consistent body of evidence – including clear warnings from market participants – that pointed to the risk of serious anticompetitive effects, such as drastic price increase to clients, foreclosure, bundling, etc.

However, the Commission did not analyse those horizontal concerns at all in its decision. Yet, as CISPE and other market participants predicted, such anticompetitive effects materialised immediately after the transaction was authorised, with very significant economic impact on most clients.

Key grounds for annulment

The application, lodged on 23 July 2025, rests on several pleas in law, including:

• Failure to assess anticompetitive effects : CISPE contends that the Commission committed a manifest error of assessment by disregarding consistent warnings from market participants and failed to properly apply correct legal test required under EU merger control rules, in particular regarding the creation or strengthening of a dominant position or the substantial lessening of competition likely to result from the transaction on the market for server virtualization software.
• Bundling risks overlooked: CISPE considers that the Commission failed to properly assess the risk of bundling between VMware’s virtualization software to Broadcom’s own hardware and software products. The Commission overlooked Broadcom’s own declarations and credible industry warnings, instead relying narrowly on “current practices” without conducting a proper forward-looking analysis.

CISPE is advised by Gide’s Brussels competition team, led by partners Laurent Godfroid and Stéphane Hautbourg, counsel Marc-Antoine de Chillaz, and associates Rolline Skehan and Pierce O’Meara.