On July 12, 2023, the Commission approved Broadcom’s proposed €55 billion acquisition of VMware after a Phase II review ruling out most of its initial concerns.[1]  The Commission’s decision is subject to technology access and interoperability remedies.

Background

Broadcom is a technology company producing semiconductors and other hardware devices, including network interface cards (“NICs”),[2] storage adapters,[3] and fiber channel host bus adapters (“FC HBAs”).[4]  VMware offers virtualization software[5] that interoperates with a wide range of hardware, including Broadcom’s and other hardware manufacturers’ NICs, storage adapters, and FC HBAs.  VMware has also recently been collaborating with other companies to develop SmartNICs.[6]  According to Broadcom, the proposed acquisition of VMware will only increase competition and innovation in cloud computing.

The transaction was notified to the Commission on November 15, 2022.  The Commission opened an in-depth investigation into the transaction on December 20, 2022, and issued a Statement of Objections on April 12, 2023.[7]  For the first time in EU merger proceedings, the Commission issued a press release on the issuance of a Statement of Objections as part of its initiative to “increase transparency” on complex merger investigations.[8]

The Commission’s Investigation

The Commission concluded that Broadcom’s and VMware’s product portfolios were “largely complementary” and investigated whether the acquisition of VMware would allow Broadcom to:

  • Restrict competition in the global markets for the supply of NICs, storage adapters, and FC HBAs by delaying or degrading access to VMware’s server virtualization software;
  • Hinder the development of SmartNICs; and
  • Anti-competitively bundle VMware’s virtualization software with Broadcom’s software.

After an in-depth investigation of over six months, the Commission excluded all of its theories of harm except for the concern that the combined entity may restrict or degrade the interoperability between VMware’s server virtualization software and FC HBAs offered by Broadcom’s only rival Marvell.

Remedies

To address the Commission’s only concern in relation to the FC HBAs market, Broadcom offered technology access commitments to preserve interoperability, a core principle that Broadcom stated would not have changed as a result of this transaction.  These commitments consist of:

  • Access to interoperability application programming interfaces (“APIs”) of VMware’s server virtualization software, as well as the materials, tools, and technical support necessary for the development and certification of third-party FC HBAs on an equal footing with Broadcom’s.
  • Access to the source code of Broadcom’s FC HBAs in order to allow Marvell and any future new FC HBAs to reuse and modify Broadcom’s FC HBA drivers that interoperate with VMware’s virtualization software.
  • An organizational separation between Broadcom’s FC HBAs team and the VMware server virtualization software team in charge of certifying and providing technical support for FC HBA vendors.

Takeaways

The Commission’s decision reaffirms its readiness to consider, on a case-by-case basis, non-divestiture remedies.  Despite its preference for divestiture remedies as set out in the Remedies Notice,[9] the Commission has accepted non-divestiture commitments in recent technology-sector transactions, including Google/Fitbit, [10] Meta/Kustomer, [11] and Microsoft/Activision,[12] and recently accepted network access commitments in the acquisition of VOO and Brutélé by telecommunications provider Orange.[13]  In addition to the Commission’s decision, Broadcom’s acquisition of VMware had received legal merger clearance in Australia, Brazil, Canada, Israel, South Africa, Taiwan, and the UK.[14]  In the US, the Hart-Scott-Rodino pre-merger waiting period has also expired.    

[1]       See Commission Press Release IP/23/3777, “Mergers: Commission clears acquisition of VMware by Broadcom, subject to conditions,” July 12, 2023.

[2]       NICs are server components that interface between a server and other networked computers and equipment.

[3]       Storage adapters connect the server central processing unit to storage directly. 

[4]       FC HBAs are storage adapters that connect servers to outside storage using a fiber-channel protocol, typically through a switch.

[5]       VMware’s virtualization software allows the running of multiple operating systems and applications simultaneously on a single server.

[6]       SmartNICs are type of NIC card that includes a programmable accelerator to increase the efficiency and flexibility of data-center networking, security, and storage.

[7]       A Statement of Objections is a formal step in a merger control investigation, where the Commission informs the companies concerned of the preliminary objections.

[8]       See Commission Press Release IP/23/2146, “Mergers: Commission send Broadcom Statement of Objections over proposed acquisition of VMware,” April 12, 2023.

[9]       See Commission Notice on remedies acceptable under the Council Regulation (EC) No. 139/2004 and under Commission Regulation (the “Remedies Notice”), OJ 2008 C 267/1 (22.10.2008), para. 13. 

[10]      Google/Fitbit (Case M.9660), Commission decision of December 17, 2020 (in which Google committed for 10 years inter alia: (1) not to use certain health data for Google Ads; (2) to maintain APIs enabling third party access to certain health data; and (3) to license certain APIs used for interoperability between Android smartphones and third-party wrist-worn wearable devices on a non-discriminatory basis).

[11]      Meta/Kustomer (Case M.10262), Commission decision of January 1, 2022 (in which Meta committed to providing Kustomer’s current and future rivals fair and equal access to its messaging services for ten years).  For additional information, see our December-January 2022 EU Competition Law Newsletter.

[12]      Microsoft/Activision (Case M.10646), Commission decision of May 15, 2023 (in which Microsoft committed to provide ten-year access to Activision’s games to competing cloud gaming providers).  For additional information, see our May 2023 EU Competition Law Newsletter.

[13]      See Commission Press Release IP/23/1722, “Commission clears the acquisition of VOO and Brutélé by Orange, subject to conditions,” March 20, 2023 (in which Orange, a provider and wholesaler of mobile and fixed telecommunications services agreed inter alia to provide competitors access to the existing fixed network infrastructure of VOO and Brutélé, and Orange’s future fiber-to-the-Premises network).  For additional information, see our February-March 2023 EU Competition Law Newsletter.

[14]      The UK Competition and Markets Authority (CMA) cleared the acquisition on August 21, 2023 finding that the transaction would not weaken competition in the supply of critical computer server products. See CMA’s Press Release, ‘CMA clears Broadcom’s deal to buy VMware,’ August 21, 2023.