Broadcom/VMware: EU General Court Again Weighs In Favour Of Commission’s Broad Information Gathering Powers

The General Court has dismissed a request by Broadcom (and its subsidiary VMware) to suspend information requests issued by the European Commission in the context of an investigation into Broadcom’s licensing practices. The decision serves as a useful reminder of the Commission’s robust information-gathering powers under EU competition law – including the ability to compel the production of documents held overseas that are otherwise subject to legal professional privilege. 

While the order dismissing Broadcom’s application dealt only with the production of communications with in-house counsel, it may provide an indication as to how the EU Courts would deal with a request for the production of privileged communications with non-EU-qualified external counsel.

Background 

In July 2023, the European Commission conditionally approved Broadcom’s proposed acquisition of VMware, following an in-depth investigation. Shortly after the transaction had completed, various European trade groups wrote a letter to the Commission alleging that Broadcom’s subsequent conduct was “contrary to the principles of fair competition and could be indicative of exploitative abuse”.

On 26 February 2026, the Commission issued a formal request for information (RFI) to Broadcom and VMware, noting that it had received information alleging that Broadcom was abusing its dominant position in several markets for virtualisation software, in particular by tying or bundling VMware products, charging abusive prices, limiting interoperability, and implementing other unfair contract terms and negotiating practices. The RFI required Broadcom and VMware to provide all in-scope documents that did not benefit from legal professional privilege under EU law – even if they were privileged in other jurisdictions.

On 20 March 2026, Broadcom requested that the Commission apply EU law protection to all external lawyers and categories of legal advice, and exclude documents protected by legal professional privilege in the US. 

The Commission subsequently amended the RFI, stating that it would exceptionally agree to withhold, at that stage of the investigation, all communications to/from outside counsel containing legal advice. The RFI therefore no longer required the production of communications between the parties and external lawyers (irrespective of the jurisdiction in which they were qualified to practice), but still required the production of communications with in-house counsel.

Nevertheless, Broadcom and VMware brought an action for annulment of the RFI. They also sought interim relief, requesting that the General Court suspend the RFI to the extent that it compelled the production of documents privileged under third country laws. 

On 3 August 2026, the General Court issued an order dismissing the application for interim measures. Broadcom’s action for annulment of the RFI remains to be determined.

Broadcom’s arguments, and the General Court’s reasoning in refusing to grant interim measures

Production of documents subject to legal professional privilege under the laws of third countries

Broadcom and VMware argued that the RFI compelled the production of documents located outside the territory of the EU without taking account of the fact that they are privileged in a third country. According to the applicants, the Commission had misread or misapplied previous EU judgments – namely AM & S Europe v Commission and Akzo Nobel Chemicals and Akcros Chemicals v Commission– which, although addressing the privilege attaching to communications with in-house counsel, did not concern the Commission’s ability to compel the production of privileged documents outside of the EU. 

The General Court recapped the key principles from these two cases, stating that the protection of the confidentiality of legal communications was subject to two cumulative conditions: (i) they must be connected to the client’s right of defence; and (ii) they must emanate from independent lawyers. The General Court reiterated that a relationship of employment between lawyer and client is incompatible with the requirement of independence, such that legal privilege does not extend to communications with in-house lawyers within a company or corporate group. This conclusion was unaltered by any professional obligations in-house lawyers might owe to their respective bar associations or law societies.

The General Court went on to state that the confidentiality of communications is an autonomous concept of EU law, and the uniform and consistent application of EU law would be undermined if the national laws of third countries were decisive in protecting communications with in-house lawyers qualified outside the EU. 

Production of documents located overseas

The applicants also submitted that the EU Courts had never examined the Commission’s jurisdiction to require the production of overseas documents in the context of a competition investigation, claiming that such a requirement would infringe public international law.

The General Court noted that, under the “qualified effects” test, the Commission is empowered to investigate conduct that is implemented outside the EU where that conduct has an “immediate and substantial effect” on the internal market. It therefore follows that the Commission must be entitled to request information from undertakings located outside the EU to assess whether their conduct infringes EU competition law¹. On this basis, the General Court rejected the suggestion that the RFI violated public international law. 

The parties also argued that the Commission must obtain the consent of the relevant third country in order to exercise such a request, and that its powers must be implemented in accordance with the public international law principle of comity. 

The General Court considered these arguments in turn, ultimately concluding that there was nothing in the cooperation agreements between the EU and the US that limited the Commission’s power to request the documents at issue, and that the principle of comity had not been disregarded in the present case given the clear link with the EU’s internal market. The General Court also observed that the principle of comity had been taken into account by the Commission in limiting the document request to capture only in-house lawyer communications (excluding communications with independent external lawyers, even if not EU-qualified). 

Proportionality 

The applicants further argued that the requirement to produce documents that are privileged under the laws of third countries infringed the principle of proportionality.

The General Court dismissed this argument in its entirety, on the basis that the scope of the request was appropriate to the legitimate objectives pursued by Articles 101 and 102 of the Treaty on the Functioning of the EU (TFEU) and did not exceed the limits of what was necessary to achieve those objectives. 

In doing so, the General Court expressly referred to the Commission’s “broad powers of investigation” under Regulation 1/2003², and noted that it was “for the Commission to decide whether a particular item of information is necessary to enable it to bring to light an infringement of the competition rules”. It is then the role of the Court to judge the necessity of the requested information by reference to the purpose stated in the request and whether there was a correlation between the two. This correlation will exist where the Commission can reasonably suppose, at the time of the request, that the information requested might help it determine whether an infringement has taken place. 

In the present case, the General Court reasoned that all documents responsive to the search terms set out in the contested RFI were likely to be relevant because the main elements of Broadcom’s licensing strategy applied worldwide. Therefore, any document specifically linked to the EU, or not linked to any particular geographic area, was likely to be relevant to the investigation, and it was prima facie appropriate and necessary for it to be produced – including communications with non-EU qualified in-house lawyers. 

The General Court further noted that the applicants had failed to establish that the production of communications that were subject to US legal privilege would result in that privilege being waived, given in particular the fact that they were being compelled to produce them to the Commission. 

Key takeaways 

The EU Courts have already confirmed on multiple occasions that, under EU law, legal professional privilege does not extend to communications with in-house lawyers, on the grounds that they are not sufficiently independent. It is, therefore, unsurprising that the General Court favoured the public interest in ensuring the effectiveness of EU competition law over the protection afforded to such communications by the laws of third countries.

The decision is nevertheless interesting in that it leaves open the question of how the EU Courts would deal with a request for communications with non-EU external counsel. This issue did not come before the General Court in this case, as the Commission amended its RFI by excluding such communications where they contained legal advice. But the Commission’s amending decision made clear that it considers that communications with independent lawyers qualified to practice in third countries are not privileged under EU law.

For its part, when considering whether the RFI (as amended) was proportionate, the General Court specifically noted that the fact that the request did not extend to such communications was sufficient to avoid undermining the parties’ rights of defence, to a fair trial, and to respect for private life. This would suggest that appeals to such fundamental rights are likely to be the most successful way to resist requests for such communications, rather than arguing that the Commission lacks the authority or is prevented from making them under public international law.

Footnotes

1. The same conclusion had already been reached by the General Court in relation to enforcement of the Foreign Subsidies Regulation in Nuctech v Commission.

2. The implementing regulation that sets out the Commission’s powers when investigating breaches of Articles 101 and 102 TFEU.

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