本文首先讨论了产业政策是否可以独立的实现，是否与竞争法分析进行正面的对抗，是否曾经取代过竞争法分析。本文着重研究了在欧盟内部，成员国实施的国家优先产业政策行为与欧委会竞争法分析相冲突，而这些冲突主要体现在企业合并与收购中。欧盟委员会保留对拟议合并审查的特权，但该特权仅涉及竞争法的部分方面，而同时成员国在竞争法的其他方面仍然享有自主权，这就为欧委会与成员国间竞争法司法管辖权的重叠产生了可能性，也是二者冲突产生的根本原因。虽然成员国在合理的核心利益受到威胁时具有有限的保护权限，但ECMR第21条第4款仍建议在委员会之上授予某一组织特权，独立处理合并案件，显然这一建议已超出了竞争法的范围。即使成员国能够以一个相关的合法利益成功的说服该条款的实行，欧盟条约中基本原则和欧盟终极目标—-“建立统一市场”都会严格地约束成员国采取如此行为。简而言之，竞争法已经进入了与产业政策严重冲突的时代，并且产业政策在竞争法分析中所起到的重要影响在日益减少，因此，二者的利益冲突将有必然更加明显的浮现出来。对于欧盟而言，主要的关注点在于欧委会与成员国间的广泛的政治冲突。为解决这一问题，既可以通过欧盟法院弱化委员会权力，也可以采取办法降低由于默许的经济保护主义在统一市场中造成的影响。毋庸置疑，法院的判例和裁决更加具有准确性与预见性。
　　
【注释】*原文载：European Competition Law Review 2007,28(3), 172-186
作者简介：乔纳森.加洛韦（Jonathan Galloway）,英国纽卡斯尔大学博士导师，法学院本科部主任
路延君，英国纽卡斯尔大学法学院博士研究生
【参考文献】1.P. Lowe “ What is Wrong with National Champions?”speech to the Enforcing Competition Law Conference at Chatham House, London, June 23, 2006.

2.Note the recent protectionist stance of several EU Governments to proposed foreign takeovers, which attract a high media profile, particularly prevalent during February and March 2006. For example “ Protectionist Storm Shakes Foundation of EU Open Market” , Financial Times, March 1, 2006; “ Foreign takeovers: Brussels Acts on Rising Protectionism” , Financial Times, March 4 and 5, 2006; and “ EU and Poland Clash on Bank Deal” , BBC News website, March 8, 2006, available at http://news.bbc.co.uk/1/hi/business/4786994.stm. See also speech by EU Competition Commissioner Neelie Kroes to the European Parliament, “ Mergers in the Internal Market” , March 15, 2006 (SPEECH/06/172). Speech is available at http://ec.europa.eu/comm/competition/speeches/index 2006.html.

3.This is a point well made by Furse by stating “ it is clear that Community policy, if it addresses wider concerns than those of pure economic efficiency, will, as with the American regime, be subject to changing emphases as the Community adapts” , M. Furse, “ The Role of Competition Policy: A Survey”[1996] 17 E.C.L.R. 250 at p.256. Note also First''s comments regarding the goals of US antitrust since the passing of the Sherman Act in 1890: “ In its earliest days, antitrust was firmly wedded to theories of political economy in which the ‘ political’was clearly recognized and perhaps even dominant over the ‘ economic’ . A we moved into the 1960s the economic came to the fore, finally to become the clearly dominant strain at the beginning of the new century” , “ Antitrust''s Goals: Theories of Antitrust in the United States and Japan”in Competition Policy in the Global Trading System: Perspectives from the EU, Japan and the USA (C.A. Jones and M. Matsushita, eds), at p.176.

4.President Reagan''s first Assistant Attorney-General for Antitrust, William Baxter, announced in 1982 that “ The only goal of antitrust is economic efficiency” , see discussion in A. Foer, “ The Goals of Antitrust: Thoughts on Consumer Welfare in the US”American Antitrust Institute Working Paper 05-09, available from www.antitrustinstitute.org/activities2004.cfm. The endurance of this view can be seen from the speech by Deputy Assistant Attorney General Kolasky, where he stated: “ Misguided competition policy, designed to maintain fragmented markets or protect small business, retards growth and undermines faith in free markets. [The US and other antitrust authorities] need to agree, therefore that the sole objective of competition policy is consumer welfare” , before the American Bar Association Fall Forum in Washington DC on November 7, 2002. Also see the speech by R. Hewit Pate, while still Assistant Attorney-General for Antitrust: “ Competition and Politics”delivered to the 12th International Conference on Competition in Bonn, Germany, June 6, 2005. Speech available at www.usdoj.gov/atr/public/speeches/speeches.htm.

5.One way of clearly distinguishing between the two models would be to consider them as the consumer surplus and total surplus models. The former model focuses upon wealth maximisation for a particular grouping of society (i.e. consumers) whereas the latter is concerned with maximising wealth for society as a whole. The distinction can be blurred in practice, and is confused by scholars such as Bork referring to the total surplus model as the maximisation of consumer welfare, see R.H. Bork, “ The Antitrust Paradox: A policy at War with Itself” . For an excellent discussion of both consumer and total surplus and an assessment of which model US antitrust enforcement tends to favour, see discussion in Foer, cited above.

6.See A B Lipsky, “ The Global Antitrust Explosion: Safeguarding Trade and Commerce or Runaway Regulation?”(2002) 26 Fletcher Forum of World Affairs 59 at p.60. Also, R Whish, Competition Law (5th edn., OUP, 2003), at p.782 stating that “ more than 100 countries now have competition law” .

7.The European Commission was named as the world''s most admired antitrust agency in 2006 by the Global Competition Review''s 7th annual rating enforcement survey.

8.See the speech by former Competition Commissioner Mario Monti, where he stated: “ We can confidently say that we share the same goals and pursue the same results on both sides of the Atlantic: namely, to ensure effective competition between enterprises, by conducting a competition policy which is based on sound economics and which has the protection of consumers as its primary concern” , ABA General Counsel Round Table, November 14, 2001.
9.It is clear that market integration (so as to further the overriding EC objective of creating an internal market) remains a goal of EC competition law, although probably not as prominently as it once was. The predominant importance of market integration in previous years is amply demonstrated by the ECJ ruling in Case 26/76, Metro SB-Grossmärkte GmbH & Co KG v Commission [1977] E.C.R. 1875, at [4]. For discussion of additional policy goals such as cultural and environmental protection see discussion in J. Tunney, “ Is the Emerging Legal Concept of Culture the Cuckoo''s Egg in the EU Competition Law Nest?”[2001] 22 E.C.L.R. 173; H. Vedder, “ The New Community Guidelines on State Aid for Environmental Protection--Integrating Environment and Competition”[2001] 22 E.C.L.R. 365; and C. Ahlborn, “ Competition Policy in the New Economy: Is European Competition Law up to the Challenge”[2001] 22 E.C.L.R. 156 at p.165.

10.EC Treaty, Arts 2 and 3. Article 3(1)(g) sets out the specific task of providing “ a system ensuring that competition in the internal market is not distorted”
.
11.Above, fn.9.

12.See statement by EC Competition Commissioner, N. Kroes, commenting: “ I am committed to ensuring that competition policy makes a full contribution to the European agenda for growth and jobs” , made to the EP Economic and Monetary Affairs Committee, Brussels, January 31, 2006 (SPEECH/06/60). Note also Commissioner Kroes'' speech on April 25, 2006 to the Kangaroo Group, Brussels where she stated “ my work is firmly grounded in the broader context of the renewed Lisbon strategy for jobs and growth. It is after all the number one priority of this Commission” , (SPEECH/06/245). Speech is available at http://ec.europa.eu/comm/competition/speeches/index 2006.html.

13.Council Regulation 139/2004 on the control of concentrations between undertakings (the EC Merger Regulation), [2004] O.J. L24/1.

14.Although note that there is little evidence to suggest that the reference to non-competition objectives espoused in Art.2 EC and Art.2 EU actually impact upon the outcome of a merger investigation by the European Commission, see discussion on this point further below.

15.Commission Regulation 2790/1999 on the application of Art.81(3) of the Treaty to categories of vertical agreements and concerted practices, [1999] O.J. L336/21.

16.See discussion in A. Jones and B. Sufrin, EC Competition Law: Text, Cases and Materials (2nd edn. OUP), at p.36 and Ch.9, particularly p.624.

17.Commission Regulation 772/2004 on the application if Art.81(3) of the Treaty to categories of technology transfer agreements, [2004] O.J. L123/11. Also see Commission Notice--Guidelines on the application of Art.81 of the EC Treaty to technology transfer agreements, [2004] O.J. C101/2 and commentary in M. Hansen and O. Shah, “ The New EU Technology Transfer Regime--Out of the Straightjacket into the Safe Harbour”[2004] 25 E.C.L.R. 465. A review of the impact of a more economic-oriented approach of the TTBER can be found at B. Bird and A. Toutoungi, “ The New EC Technology Transfer Regulation: One Year On”(2006) 28 E.I.P.R. 292.

18.“ Competition Law and Policy in the European Union”(2005), available from: www.oecd.org/dataoecd/7/41/35908641.pdf.

19.See, e.g. C Ahlborn, “ Competition Policy in the New Economy: Is European Competition Law up to the Challenge”[2001] 22 E.C.L.R. 156, and A. Jones and B. Sufrin, cited above, at pp.35-40.

20.See, for example, the European Commission''s First Report on Competition Policy in 1972, at p.16: “ The Commission is determined to reinforce the competitive position of enterprises by exempting by means of regulations or individual decisions, positive forms of cooperation from the ban on cartels. This applies particularly to cooperation between small and medium-sized enterprises, which often can only compete effectively with larger enterprises by means of this sort of cooperation.”

21.Speech to the Informal Competitiveness Council entitled “ Less and Better State Aid for Growth and Jobs--the New Rules on Research, Development and Innovation, and Risk Capital” , Graz, April 21, 2006 (SPEECH/06/242). Speech is available at http://ec.europa.eu/comm/competition/speeches/index 2006.html.

22.European Commission XXXIII Annual Report on Competition Policy (2003), at p.96.

23.This is an issue that is particularly pertinent in discussing the way forward for international competition law, as these rules may serve differing purposes in each jurisdiction. The competition-related activities of the United Nations Conference on Trade and Development (UNCTAD) are focused upon assessing these issues and UNCTAD will often conduct studies on the relevance of competition law for developing economies, see http://r0.unctad.org/en/subsites/cpolicy/index.htm.

24.OECD Peer Review: Competition Law and Policy in South Africa (May 2003). Available at www.oecd.org/dataoecd/43/58/34823812.pdf.

25.ibid., at pp.17-18.

26.Above fn.24, at p.20.

27.Discussion of Spanish competition law is accurate to the best of my knowledge as at the time of writing, although forthcoming reforms to Spanish competition law are likely to reduce the political involvement in the process. Nonetheless, the comparison between the structures of Spanish and UK competition law should illustrate points of general application.

28.Royal Decree 1443/2001 of December 21, implementing the Competition Act 16/1989 of July 17, regarding the control of economic concentrations, Official State Gazette No.16, January 18, 2002. See commentary on Spanish competition law and recently proposed reforms in H. Armengod, “ A White Book for the Reform of the Spanish Competition Law System”[2005] 26 E.C.L.R. 428; P. Callol and P. Pignatelli, “ Spain: General--Competition Enforcement”[2005] 26 E.C.L.R. N71.

29.See discussion in P. Callol, “ Case Comment: Spain: Mergers--Gas Supplies”[2006] 27 E.C.L.R. N63.

30.Reported in the Financial Times, March 1, 2006.

31.Reported in the Financial Times, February 27, 2006.

32.P. Callol, “ Spain: Mergers--Gas and Electricity”[2006] 27 E.C.L.R. N99. Note that the Spanish Supreme Court has granted interim relief suspending the proposed acquisition of Endesa by Gas Natural, pending judicial review of the Government''s approval for the takeover, see P. Callol and J. Manzarbeitia, “ Case Comment: Spain: Mergers--Gas Supplies”[2006] 27 E.C.L.R. N172.

33.Enterprise Act 2002, ss.42 and 45.

34.Enterprise Act 2002, s.58, as amended by the EC Merger Control (Consequential Amendments) Regulations (SI 2004/1079).

35.Reported in the Financial Times, April 26, 2006.

36.Speech by the Rt. Hon. Gordon Brown M.P. to the CBI President''s dinner, June 5, 2006 (38/06), available from www.hm-treasury.gov.uk/newsroom and speeches/press/2006/press _38_06.cfm.

37.See discussion of the significance of the changes introduced by the Enterprise 2002 (relevant to this article) in J. Vickers, “ Competition Economics and Policy”[2003] 24 E.C.L.R. 95. Although it must be acknowledged that in practice, the UK Secretary of State has exercised his/her role in the merger control process merely to endorse the decision of the competition authority since the espousal of the “ Tebbit doctrine”in the 1980s, hence limiting the impact of “ non-competition”objectives. For discussion of the practice set in place by former Secretary of State for Department of Trade and Industry Norman Tebbit, see B.J. Rodger, “ UK Merger Control: Politics, the Public Interest and Reform”[2000] 21 E.C.L.R. 24.

38.S. Goodman, “ Steady as She Goes: the Enterprise Act 2002 Charts a Familiar Course for UK Merger Control”[2003] 24 E.C.L.R. 331 at p.332.

39.ibid., at pp.331-332.

40.See P. Callol and P. Pignatelli, “ Spain: General--Competition Enforcement”[2005] 26 E.C.L.R. N71 and P. Callol and J. Manzarbeitia, “ Spain: Legislation--Draft Competition Act”[2006] 27 E.C.L.R. N170. Although note that in limited circumstances the government would be able to veto the competition authority''s decision if a “ public interest”criteria was satisfied.

41.See article by W. Kolasky, former US Deputy Assistant Attorney-General for Antitrust: “ What is Competition? A Comparison of US and European Perspectives”(2004) Spring-Summer The Antitrust Bulletin 29. Also see discussion in E. Fox, “ We Protect Competition, You Protect Competitors”(2003) 26 World Competition 149.

42.Case COMP/M.2220, Commission Decision of July 3, 2001. The GE/Honeywell Decision has been endorsed by the Court of First Instance in its judgment of December 14, 2005, Cases T-209/01, Honeywell v Commission and T-210/01, General Electric v Commission (although economic theories used by the European Commission were heavily criticised).

43.Case IV/M.315, [1994] O.J. C102/15; [1994] 4 C.M.L.R. 529. See discussion in A. Kaczorowska, “ International Competition Law in the Context of Global Capitalism”[2000] 21 E.C.L.R. 117 at p.118.

44.D. Banks, “ Non-competition Factors and their Future Relevance Under European Merger Law”[1997] 18 E.C.L.R. 182 at p.185.

45.ibid.

46.See Case IV/M.53, Aerospatiale-Alenia/de Havilland [1991] O.J. L334/42 where the Commission faced opposition from the French and Italian Governments. Note that there have been cases where it has been suggested that the Commission may have taken such factors into account, see discussion in K. Fountoukakos and S. Ryan, “ A New Substantive Test for EU Merger Control”[2005] 26 E.C.L.R. 277 at fn.24, as well as D. Banks, above, fn.43.

47.See D. Banks, op. cit., fn.43.

48.M.M. Dabbah, The Internationalisation of Antitrust Policy (Cambridge, 2003), at p.73.

49.1998 Report of the World Trade Organisation (WTO) Panel “ Japan--Measures Affecting Consumer Photographic Film and Paper”WT/DS44/R, March 31, 1998 (98-0886).

50.M. Furse, “ Competition Law and the WTO Report: ‘ Japan--Measures Affecting Consumer Photographic Film and Paper” ’[1999] 20 E.C.L.R. 9.

51.H. First, “ Antitrust''s Goals: Theories of Antitrust in the United States and Japan”in Competition Policy in the Global Trading System: Perspectives from the EU, Japan and the USA (C.A. Jones and M. Matsushita (eds), at p.191.

52.ibid., at pp.192-193.

53.www.internationalcompetitionnetwork.org/icnnpguidingprin.htm.

54.OECD Recommendation of the Council on Merger Review, March 25, 2005--C (2005) 34, at A1.2.2 and A2 respectively. Available from: http://webdomino1.oecd.org/horizontal/oecdacts.nsf/linkto/c(2005)34.

55.ibid., at A6.

56.Note that the work of the World Trade Organisation in investigating the linkages between trade and competition policy, through its dedicated working group on this issue, have identified future progress within the WTO should build upon the core principles of transparency, non-discrimination and procedural fairness, see Doha Ministerial Declaration (November 14, 2001 WT/MIN(01)/DEC/1), at paras 23-25. See the working group website for further information: www.wto.org/english/tratop e/comp e/history e.htm#julydec.

57.The latest version of which was agreed at the Fifth United Nations Conference to Review All Aspects of the Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices, November 14-18, 2005, Antalya (Turkey).

58.UN Set at E3, available at: http://r0.unctad.org/en/subsites/cpolicy/docs/CPSet/rbpc10rev20en.pdf. Although note that the UN Set also recommends flexibility to enable preferential or differential treatment when dealing with developing countries. In particular it states at C7 that in order to ensure the equitable application of the UN Set, competition rules in developing countries may reflect the need to promote “ the establishment or development of domestic industries and the economic development of other sectors of the economy” .
59.Above, fn.4.

60.The static v dynamic efficiency paradigm tends to present itself in competition cases with significant intellectual property issues at stake, see discussion in C. Ritter, “ The New Technology Transfer Block Exemption Under EC Competition Law”(2004) 31 L.I.E.I. 161.

61.For a discussion of the political elements of the consumer welfare discussion see A. Foer, op. cit., fn.4.

62.Aspects of Independence of Regulatory Agencies and Competition Advocacy--a Getúlo Vargas Foundation (NGA) contribution, submitted to the CPI Working Group; Subgroup 3: Competition Advocacy in Regulated Sectors, at p.6. Available from: www.internationalcompetitionnetwork.org/bonn/CPI WG/SG3 Advocacy in Regulated Sectors/NGA Submission Aspects of Independence.pdf.

63.ibid., at p.8.

64.Background Note by the Secretariat, Working Group on the Interaction between Trade and Competition Policy, WT/WGTCP/W/127 June 7, 1999 (99-2281), available at: http://docsonline.wto.org/DDFDocuments/t/WT/WGTCP/W127.doc.

65.ibid., at para.37, note also that the principles of non-discrimination and transparency are also advocated within this background note, at para.39.

66.As the UK Chancellor, Gordon Brown, has described it, above, fn.35.

67.To envisage how such a conflict could materialise in a national setting, look to the recent dispute between the US Department of Justice Antitrust Division and the US independent Federal Trade Commission (FTC) regarding agreements entered into between patent holding pharmaceutical companies and generic competitors. The Financial Times (June 5, 2006) notes that “ Observers say the underlying rift between the FTC and justice department is not based on legal semantics, but on important ideological difference of opinion on the rights of patent holders.”Whilst not true for this example, it is possible to envisage a dispute between an arm of government (incorporating “ non-competition”considerations such as industrial policy) and an independent competition authority in such a situation.

68.Council Regulation 1/2003 on the implementation of the rules on competition laid down in Arts 81 and 82 of the Treaty, [2003] O.J. L1/1.

69.Above, fn.13. For a critique of the system for allocating competence under EC merger control see O. Budzinski, “ An Economic Perspective on the Jurisdictional Reform of the European Merger Control System”(2006) 2/1 European Competition Journal 119.

70.ECMR, above, fn.13, see Arts 1 and 5.

71.ibid., at Recital 8.

72.R. Whish, Competition Law (5th edn., Lexis Nexis Butterworths, 2003), at p.826.

73.S. Mohamed, “ National Interests Limiting EU Cross-border Bank Mergers”[2000] 21 E.C.L.R. 248 at p.253.

74.E. Navarro, A. Font, J. Folguera and J. Briones, Merger Control in the EU (2nd edn., OUP, 2005), at para.14.56.

75.Monopolies and Mergers Commission, Lyonnaise des Eaux SA and Northumbrian Water Group Plc: A report on the merger situation, Cm.2936 (1995). European Commission Art.21(3) Decision of March 29, 1995 (Application by the United Kingdom of March 6, 1995 for the recognition of a legitimate interest under Art.21(3) re certain provisions of the Water Industry Act 1991 (as amended by the Competition and Services (Utilities) Act 1992)), and Commission Decision Case IV/M.567, Lyonnaise des eaux/Northumbrian Water, December 21, 1995.

76.Albeit in the context of the previous ECMR, Art.21(3) of Regulation 4064/89.

77.The predecessor to the UK Competition Commission.

78.The MMC was under a duty to consider whether the proposed merger would act against the public interest. In this case that test at that time included an assessment of whether the UK Director General of Water Services (DGWS) could continue to make comparisons between different water enterprises post-merger under the framework of the Water Industry Act 1991.

79.European Commission Art.21(3) Decision of March 29, 1995, at para.2.

80.ibid., at para.5.

81.ibid., at para.6, as required by Art.21(4) third paragraph of the ECMR.

82.Commission Decision, ibid., at para.5.

83.ibid., at para.6. Note that the MMC Report notes within the Summary that “ We considered that the terms of the EC Decision meant that we could not take account of the potential implications of the merger for competition, employment or regional policy” , above, fn.74, available from www.competitioncommission. org.uk. The European Commission then noted that the MMC communicated details of its water industry report and remedies imposed upon the parties, in its Decision of non-opposition on December 21, 1995, above, fn.74, at para.8.

84.Mohamed, above, fn.72, at p.253.

85.Note that the Spanish Government passed amending legislation to the powers of the energy regulator (the Comisión Nacional de Energía) to enable to scrutinise the proposed concentration between Endesa and E.on. See commentary in Financial Times, February 25 and 26, 2006, as well as BBC News online article “ Spanish energy tussle hots up” , August 7, 2006, available at http://news.bbc.co.uk/1/hi/business/5253596.stm. The Spanish CNE cleared the E.on takeover of Endesa by a decision on July 28, 2006, subject to 19 commitments including sizeable divestments. The commitments have caused a great deal of controversy with the companies concerned as well as the European Commission, see E.on Press Release July 28, 2006 and August 1, 2006, available from www.eon.com/en/presse/news-overview.jsp.

86.The proposed concentration between E.on and Endesa was the subject of a Commission merger investigation, resulting in the Commission clearing the concentration on April 25, 2006, Case COMP/M.4110, E.ON/Endesa, see Press Release IP/06/528. Thus the Commission would have to be satisfied that a legitimate interest other than that pursued by competition law was relevant to the case, and additionally that the proposed action was compliant with EC law. It appears that the Spanish Government is arguing national security interests are at stake and “ its nuclear plants would not be as safe in German hands as in Spanish ones, because of differences in security standards in the two countries” . The Commission was far from convinced of this however and officially opened infringement proceedings against Spain, see Commission press release on 28 October 2006 IP/06/1426. Spain appears to have acted to alleviate many of the Commission''s concerns (see article in the Financial Times “ Eon to push ahead with its bid for Endesa” , 7 November 2006), although it remains to be seen whether this will satisfy the Commission.

87.Joined Cases C 46 & 48/93, Brasserie du Pêcheur SA v Bundesrepublik Deutschland, and R. v Secretary of State for Transport Ex p. Factortame Ltd (Factortame III) [1996] E.C.R. I-1029, at [51]-[83].

88.Navarro et al., above, fn.73, at para.14.66.

89.See discussion in Navarro et al., op. cit., fn.73, at para.14.63. Note that the case concerned the previous ECMR, Regulation 4064/89 although Art.21(3) of the previous ECMR is substantively the same as Art.21(4) of Regulation 139/2004.

90.See discussion above regarding the potential Centrica/Cazprom merger.

91.As an example see the recent speech by EU Competition Commissioner Neelie Kroes to the European Parliament, “ Mergers in the Internal Market”March 15, 2006 (SPEECH/06/172). Speech is available at http://ec.europa.eu/comm/competition/speeches/index 2006.html.

92.Case IV/M1616 (1999).

93.S Mohamed, above fn.73, 256.

94.There have been many potential cases recently in addition to the Endesa case discussed above, although most are settled following pressure from the European Commission. One such case was the dispute between the European Commission and Poland concerning the proposed merger between Italian bank Unicredit and German bank Bayerische Hypo-und Vereinsbank AG (HVB) due to their control of Polish subsidiaries, Pekao and BPH respectively. In spite of the Commission clearing the merger (Case COMP/M.3894, UNICREDITO/HVB, October 18, 2005), the Polish Treasury then required the disposal of the shares in BPH on December 20, 2005, but failed to request that the Commission take account of legitimate interests under Art.21(4) ECMR. See European Commission Press Releases IP/06/277, “ Mergers: Commission launches procedure against Poland for preventing Unicredit/HVB merger” , March 8, 2006, and IP/06/276, “ Free movement of capital: Commission opens infringement procedure against Poland in context of UniCredit/HBV merger” , March 8, 2006. The dispute appears to have been resolved by an agreement between the Polish Ministry of Treasury and Unicredit on April 19, 2006. Strict conditions were imposed upon the merging parties, including a requirement for the disposal of part of BPH within 30 months. (See Financial Times article “ Pekao, BPH tie-up is cleared” , April 20, 2006 and Unicredit Press Release, “ Signing of the agreement between the Ministry of Treasury and Unicredit” , available on www.unicreditgroup.eu).

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