As reported in yesterday’s Financial Times, CISPE has lodged a complaint with the European Ombudsman over the length of time taken to publish the Commission’s decision on the Broadcom acquisition of VMware.
The European Commission gave Broadcom the green light to takeover VMware on 12th July 2023 but took 672 days to publish its rationale for that decision. During those two years, Broadcom brutally imposed a whole raft of exponential price increases and new, and unfair software licensing terms that pulled the rug from under the feet of thousands of European organisations dependent on VMware’s virtualisation software.
The delay in publishing the Commission’s formal decision, notably meant that European companies could not appeal against its decision authorizing the acquisition of VMware, and that, in CISPE’s view, amounts to a denial of justice for those hit by these bullyboy tactics.
The Commission’s defence, aired again today in the FT, is that the merging parties are entitled to keep commercially sensitive data confidential, and that it takes time to agree the ‘non-confidential’ version of the final report. However, whilst there are stringent time limits for almost every other phase of a merger decision, there are none for this final stage. This opens the door to flagrant ‘gaming’ of the system by unethical parties. Whilst they drag their heels and kick responses into the legal long grass, they remain free to impose new terms on customers with no oversight. Worse, as we have heard from customers directly, the elapsed time serves to normalise the bad behaviour making it less likely that customers will overturn or break free of these unequal contracts.
When the decision was finally published on 13th May 2025, CISPE challenged it at the General Court. But in the interim, Broadcom has sucked billions of Euros out of Europe’s digital economy to benefit only itself and its shareholders as it seeks to rapidly pay-down the $61 billion cost of VMware.
But this is not the only example; CISPE believes that this is a systemic problem that must be addressed by the Commission. In the last decade it has become increasingly common for its merger decisions to be delayed by two years or more – the record being a staggering 1,463 days (the acquisition by Imerys of certain assets of Alteo case M.8130).
CISPE is calling on the Commission to address these systematic and significant delays and to apply more stringent time limits on publishing non-confidential versions of merger and acquisition decisions. CISPE proposes a two-month maximum timeframe between decision and non-confidential report being published. There is absolutely no reason not to respect such deadline. We also urge the Commission to be bolder in using its power to publish decisions as they stand when faced with parties deliberately abusing the procedure to buy time.
They say justice delayed is justice denied, and for too long the Commission has allowed delays in publishing its decisions to play into the hands of those that wish to impose unfair terms, prices and behaviours on European customers. Now is the time to close this loophole to help Europeans rapidly access the justice to which they are entitled.