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declare the present action admissible and well founded;

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annul the European Commission decision of 12 July 2023 declaring a concentration to be compatible with the internal market and the EEA agreement (Case M.10806 - BROADCOM / VMWARE); (1)

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order the European Commission to pay the costs.

1.

First plea in law, alleging an error in law and manifest error of assessment due to the Commission’s failure to assess the risk of a 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.

At the time of its assessment of the transaction, the Commission indeed recognise (i) VMware’s significant market power in the market for virtualization software, (ii) the fact that VMware is viewed by many customers as particularly important, (iii) the lack of viable alternatives to VMware, (iv) the complexity and difficulty of switching away from VMware, and (v) Broadcom’s track record of aggressive business practices.

The Commission also had in its possession a body of consistent and converging evidence – notably clear warnings from market respondents – pointing to a serious risk of serious anticompetitive effects on that market post-transaction. As anticipated, these effects materialized immediately after the transaction was authorised.

Despite this, the Commission failed to conduct any competition analysis of these effects, and did not apply the legal test it was required to follow. In particular, it failed to assess the horizontal effects of the transaction on the market for server virtualization software.

2.

Second plea in law, alleging manifest error of assessment, failure to state reasons and error in law due to the Commission’s failure to properly assess the alleged risks of bundling between, on the one hand, VMware’s virtualization software and Broadcom’s hardware and, on the other hand, VMware’s virtualization software and Broadcom’s software.

The Commission further failed to comply with its duty to state reasons. It asserted that the products were not complementary and were purchased by different departments, yet it failed to provide any concrete evidence beyond a vague reference to the market investigation. Moreover, it did not explain how the present transaction would differ from the CA Technologies and Symantec acquisitions, both of which led to bundling and similar anticompetitive effects.

The Commission also committed an error in law by relying on the parties’ current commercial practices, as observed before the merger, without undertaking a proper prospective assessment of how their conduct might evolve once the merger is implemented.

3.

Third plea in law, alleging manifest error of assessment regarding the impact of the transaction on innovation in the market for server virtualization software.

The Commission committed a manifest error by failing to conduct a thorough investigation into the potential adverse effects on innovation – first and foremost in the market for server virtualization software, and more broadly across all markets affected by the transaction.