The news
On August 3, 2026, the president of the EU General Court rejected Broadcom's bid to suspend a European Commission demand for documents in its VMware antitrust investigation, clearing the way for Brussels to obtain communications involving Broadcom's in-house lawyers outside the EU.
The dispute, Case T-280/26 R, concerns a Commission decision of February 26, 2026, ordering Broadcom (AVGO) and its Irish subsidiary VMware International to supply information within five weeks. The decision was issued under Article 18(3) of Regulation 1/2003, the EU's core antitrust procedure rule, which allows fines and periodic penalty payments for incomplete answers. It said documents had to be produced even if they might be privileged in other jurisdictions.
According to the order, the Commission's investigation (Case AT.40924) concerns potentially anticompetitive conduct in how Broadcom develops and licenses VMware products in the European Economic Area. The Commission said it had received information alleging that Broadcom abuses a dominant position in virtualization software by tying or bundling products, charging abusive prices, limiting interoperability and using contract terms and negotiating practices that increase customer lock-in. The allegations are unproven, and the order does not rule on them.
Broadcom asked the Commission on March 20 to exclude documents protected under U.S. privilege rules. The companies sued to annul the decision on May 6 and sought interim relief on May 7. On May 13, the Commission amended its decision to exclude legal advice exchanged with all external independent lawyers, including those qualified outside the EU. That left one category in dispute: communications with in-house lawyers outside the EU advising on non-EU law. A temporary order of May 22 had suspended the demand while the application was considered.
The General Court's president, M. van der Woude, found no prima facie case. The order said in-house lawyers qualified outside the EU enjoy no legal professional privilege in EU competition proceedings, and that U.S. law cannot create expectations under EU law. Because the main elements of Broadcom's licensing strategy are intended to apply worldwide, documents matching the Commission's search terms are likely relevant, it said.
Weighing the interests, the order said letting an investigated company decide which documents are relevant would seriously undermine the Commission's powers, and that any documents would be removed from the file if Broadcom later wins. The May 22 order was cancelled. Broadcom's main annulment case remains pending.
The numbers
- Court case
- T-280/26 R
- Commission case
- AT.40924 (VMware software licensing)
- Date of the Commission's information decision
- February 26, 2026
- Response deadline in the original decision
- 5 weeks
Why CEOs should care
For CIOs and procurement leads renegotiating VMware contracts, the Commission is examining the practices at the center of complaints from European cloud providers: bundles, prices and terms that raise switching costs. The order keeps that evidence-gathering moving, but it is an early procedural step, not a finding. Do not build a renewal strategy around EU relief arriving soon. Negotiate on your own terms, such as shorter commitments, renewal price caps and exit assistance, and keep records of any bundling or lock-in you experience.
For general counsel and boards of any multinational that sells into Europe, the privilege point matters as much as the VMware angle. Under EU case law cited in the order, exchanges with in-house lawyers are not privileged in EU competition investigations, and the order said that applies to in-house lawyers qualified outside the EU, so internal memos about Europe-facing strategy may end up in the Commission's hands. Lawyers at Covington & Burling advised companies to label external counsel communications clearly and to engage early with authorities about advice from non-EU external counsel.
CFOs should treat this as a slow-moving but live risk to Broadcom's VMware licensing model in Europe. If the Commission eventually brought and won a case, remedies could change the terms available to European customers; until then, the current commercial terms stand.
The bigger picture
The investigation follows Broadcom's overhaul of VMware licensing after its November 2023 acquisition, including ending perpetual licenses in favor of subscription bundles, as SDxCentral has reported. SDxCentral also reported that Cloud Infrastructure Service Providers in Europe (CISPE), a trade group, filed a complaint with the Commission's competition directorate.
The order also extends a line of EU case law. It cites a 2024 order in a case involving Nuctech for the principle that companies choosing to operate in the EU market generally cannot rely on another country's law to object to EU rules. Law firm Macfarlanes described the Broadcom order as the court again backing the Commission's broad information-gathering powers.
What happened next
On September 11, 2026, Bloomberg reported that Commission officials had sent questions in July to European cloud providers about the commercial importance of VMware products, the availability of alternatives and the effects of Broadcom's revised certification and licensing arrangements, according to a September 13 summary by PYMNTS. A Broadcom spokesperson said the company is aware the Commission is gathering information from market participants and remains engaged with regulators, PYMNTS reported.
What to watch: the General Court's ruling on Broadcom's main annulment action, any appeal of the interim order, and whether the Commission moves from information-gathering to formal proceedings in Case AT.40924.
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