# C_2006096EN.01001702.xml

| 22.4.2006 | EN | Official Journal of the European Union | C 96/17 |
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22.4.2006

EN

Official Journal of the European Union

C 96/17

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Action brought on 6 February 2006 — Republic of Poland v Commission of the European Communities

(Case T-41/06)

(2006/C 96/33)

Language of the case: Polish

Parties

Applicant: Republic of Poland (represented by: Paweł Szałamacha, Government Agent)

Applicant:

Defendant: Commission of the European Communities

Defendant:

Form of order sought

The applicant claims that the Court should:

| — | declare invalid the decision of 18 October 2005 in Case COMP/M.3894 establishing that the merger of Unicredito Italiano SpA and Bayerische Hypo- und Vereinsbank AG is compatible with the common market; |
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declare invalid the decision of 18 October 2005 in Case COMP/M.3894 establishing that the merger of Unicredito Italiano SpA and Bayerische Hypo- und Vereinsbank AG is compatible with the common market;

| — | order the Commission to pay the costs of the proceedings. |
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order the Commission to pay the costs of the proceedings.

Pleas in law and main arguments

The applicant seeks a declaration that the decision of the European Commission of 18 October 2005 in case COMP/M.3894 recognising the merger of the banks Unicredito Italiano SpA (UCI) and Bayerische Hypo- und Vereinsbank AG (HVB) as being compatible with the common market is invalid. Each of those banks has holdings in banking institutions in Poland and, according to the assertions made by the applicant, the effect of the proposed concentration will be the assumption of control by UCI over HBV's holding within the Polish banking market.

In support of its action, the applicant raises the following heads of complaint:

| — | breach of Article 2(1) of the Regulation on concentrations (1) by reason of what the applicant considers to be the inappropriate appraisal of the proposed concentration, in that the Commission failed to take account of the history of the banking sector in Poland, the large amount of foreign investment and the reasons why the Polish Government introduced limitations on investments in the event of the privatisation of State banks. The applicant further submits that the Commission breached Article 2(1) of the Regulation inasmuch as, when concluding its appraisal of the compatibility of the proposed concentration with the common market, it failed to take account of the existence and effects of Article 3(9) of the privatisation agreement, (2) which, in the view of the applicant, amounts to a legal barrier to market entry within the terms of Article 2(1)(b) of the Regulation on concentrations. The applicant also contends that the Commission adopted an inappropriate evaluation of concentrations on the Polish banking market and also erred in its appraisal of the effect which the proposed concentration would have on competition within the market for investment funds and a number of specific markets within the Polish banking sector; |
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breach of Article 2(1) of the Regulation on concentrations (1) by reason of what the applicant considers to be the inappropriate appraisal of the proposed concentration, in that the Commission failed to take account of the history of the banking sector in Poland, the large amount of foreign investment and the reasons why the Polish Government introduced limitations on investments in the event of the privatisation of State banks. The applicant further submits that the Commission breached Article 2(1) of the Regulation inasmuch as, when concluding its appraisal of the compatibility of the proposed concentration with the common market, it failed to take account of the existence and effects of Article 3(9) of the privatisation agreement, (2) which, in the view of the applicant, amounts to a legal barrier to market entry within the terms of Article 2(1)(b) of the Regulation on concentrations. The applicant also contends that the Commission adopted an inappropriate evaluation of concentrations on the Polish banking market and also erred in its appraisal of the effect which the proposed concentration would have on competition within the market for investment funds and a number of specific markets within the Polish banking sector;

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| — | breach of Article 6(1) of the Regulation on concentrations, inasmuch as the proposed concentration ought, according to the applicant, to have given rise to serious doubts on the Commission's part as to its compatibility with the common market and should have led to the initiation of proceedings or the second phase of the investigation as to whether the proposed operation comes within the scope of the Regulation on concentrations; |
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breach of Article 6(1) of the Regulation on concentrations, inasmuch as the proposed concentration ought, according to the applicant, to have given rise to serious doubts on the Commission's part as to its compatibility with the common market and should have led to the initiation of proceedings or the second phase of the investigation as to whether the proposed operation comes within the scope of the Regulation on concentrations;

| — | breach of Article 11 of the Regulation on concentrations, breach of Article 5 of the implementing regulation (3) and infringement of the principle of fair and proper administration; the applicant takes the view that the notification of the concentration, as indicated by the parties, was incomplete inasmuch as it did not contain any information on the matter of the conditions of the privatisation agreement, in particular Article 3 thereof, and as such should not at all have been taken into consideration by the Commission; |
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breach of Article 11 of the Regulation on concentrations, breach of Article 5 of the implementing regulation (3) and infringement of the principle of fair and proper administration; the applicant takes the view that the notification of the concentration, as indicated by the parties, was incomplete inasmuch as it did not contain any information on the matter of the conditions of the privatisation agreement, in particular Article 3 thereof, and as such should not at all have been taken into consideration by the Commission;

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| — | breach of the duty to cooperate resulting from Article 10 of the Treaty establishing the European Community by reason of the failure, before the decision was adopted, to take into consideration the legitimate interests of the Republic of Poland, the protection of which is provided for in Article 21(4) of the Regulation on concentrations; in the view of the applicant, the Commission was under an obligation, prior to the adoption of the decision recognising the concentration as being compatible with the common market, to take action for the purpose of obtaining full information on any legitimate interests of the Member States, a fortiori as it was possible for the Commission, when monitoring the Polish banking market over the period prior to the Republic of Poland's accession to the European Union, to familiarise itself with the structure of that market, and the Commission must have been aware of the existence of a legitimate public interest on the part of the Polish Government in guaranteeing the application and implementation of the strategies of de-monopolisation and privatisation; |
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breach of the duty to cooperate resulting from Article 10 of the Treaty establishing the European Community by reason of the failure, before the decision was adopted, to take into consideration the legitimate interests of the Republic of Poland, the protection of which is provided for in Article 21(4) of the Regulation on concentrations; in the view of the applicant, the Commission was under an obligation, prior to the adoption of the decision recognising the concentration as being compatible with the common market, to take action for the purpose of obtaining full information on any legitimate interests of the Member States, a fortiori as it was possible for the Commission, when monitoring the Polish banking market over the period prior to the Republic of Poland's accession to the European Union, to familiarise itself with the structure of that market, and the Commission must have been aware of the existence of a legitimate public interest on the part of the Polish Government in guaranteeing the application and implementation of the strategies of de-monopolisation and privatisation;

a fortiori

| — | breach of Article 253 EC and of the obligation to provide specific reasons for a decision, a failure which, in the view of the applicant, renders more difficult the reconstruction and monitoring of the correctness of the process by which the law is applied by the Commission. |
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breach of Article 253 EC and of the obligation to provide specific reasons for a decision, a failure which, in the view of the applicant, renders more difficult the reconstruction and monitoring of the correctness of the process by which the law is applied by the Commission.

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(1)  Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (OJ 1989 L 395, p. 1).

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(2)  Agreement on the sale of shares in Bank Polska Kasa Opieki Spółka Akcyjna – Grupa Pekao S.A. entered into on 23 June 1999 between the State Treasury of the Republic of Poland and Unicredito Italiano SpA and Allianz AG.

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(3)  Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings (OJ 2004 L 133, p. 1).

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