CISPE, the trade association for cloud providers, is looking to mount pressure on the EU’s decision to greenlight Broadcom’s acquisition of VMware, having filed a complaint with the European Ombudsman over the time it’s taken to publish its decision on the deal.

The group, which filed a complaint regarding the European Commission’s decision back in July, has taken issue with the bloc’s sign-off on the deal for failing to address competition concerns.

CISPE alleges the European Commission took approximately 672 days to publish the rationale for its decision, during which time Broadcom “brutally imposed a whole raft of exponential price increases” and “unfair software licensing terms.”

“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,” CISPE said in a statement.

In defense of its handling of the Broadcom VMware merger, a Commission spokesperson told the Financial Times the delay in publishing was due to protecting commercially sensitive data confidential, citing a “duty to protect business secrets and other confidential information of companies involved in merger procedures.”

While there are time limits throughout the process for approving deals in Europe, the final, and arguably, most important stage has none at all.

CISPE took issue with this, claiming it “opens the door to flagrant ‘gaming’ of the system by unethical parties,” arguing that in the case of Broadcom, the vendor was able to impose new terms on VMware 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,” the association claimed.

CISPE argued that the Broadcom case showed a “systemic problem” with the time it takes for the Commission to sign off on deals, claiming: “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.”

“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.”

The trade association proposed implementing a two-month maximum timeframe between the decision and the non-confidential report being published.

“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,” CISPE said in a statement. “Now is the time to close this loophole to help Europeans rapidly access the justice to which they are entitled.”

Since taking over VMware, Broadcom has overhauled the brand’s licenses, no longer offering support for older products with perpetual licenses, instead encouraging customers to sign up to its Cloud Foundation suite (VCF), which bundles VMware’s core products – including vSphere, vSAN, and SDDC Manager, among others.

Some customers have reported that the overall cost for the revamped license has soared compared to what they were previously paying, with some unhappy about having to pay more for software products they don't even want to use.

A handful have even gone as far as to take on VMware and Broadcom in the courts, such as British supermarket giant Tesco, which filed a breach of contract suit in July over changes to perpetual license support.

Telecom giant AT&T made a similar complaint last September, branding Broadcom a “bully” trying to force the carrier into “paying a king’s ransom for subscriptions [it] does not want or need.” That dispute was settled a month later, however.

Lawsuits aside, Broadcom doesn’t appear phased, with CEO Hock Tan proudly proclaiming that more than 90% of VMware’s 10,000 largest customers signed up for the vendor’s VCF platform during its September Explore event.

I’ve got one word for you: Ombudsman

CISPE’s decision to take its complaint to the European Ombudsman will see it try to get an independent determination that, in this case, the 672-day delay in publishing the decision's rationale was an administrative failure – one amounting, the group claims, to a “denial of justice.”

But what can the Ombudsman actually do?

It’s not a court, so its ruling won’t be legally binding. Any official ruling on procedural delays affecting parties’ ability to appeal could strengthen any potential future legal actions brought by CISPE members in European courts.

It’s important to stress that the Ombudsman can’t reverse the Broadcom/VMware merger approval itself. That ship may have well and truly sailed, but that didn’t stop CISPE appealing to the EU General Court over the Commission's decision to approve the acquisition.

The most powerful tool at its disposal is the ability to send a “Special Report” to the European Parliament. Here, such a report can only be filed if the Commission fails to provide a satisfactory response or fails to follow the Ombudsman's recommendations.

This would force MEPs to debate the issue, which could lead to more formal legislative scrutiny, in this instance, on adopting new, mandatory time limits for mergers and acquisitions.