首先，在确定与该条款适用一致的情况下，金融危机体系中所采取的一般性救济计划应符合客观性与无歧视原则。[13]特别是涉及担保和资本重组计划必须对有关成员国相关经济系统中的所有信贷机构开放，无论该信贷机构的性质及所在地，例如：包括信贷机构的下属子公司以及总部设在境外但分支机构在成员国境内的银行。其次，委员会强调成员国应对个别金融机构或（和）整个金融业提供有偿担保；费用的计算应根据风险程度以及分别依据受益人信贷记录与信贷需求。[14]同样，国家资本注入时企业必须提供等价值的可兑换有价证券，[15]也可考虑由国家按出资比例享有出资人权利。[16]最后，尤为主要的是，担保与重组方案应受到严格正式的监督，防止政府成为这种咄咄逼人经济行为的受益者，例如：引入相关GDP标准、市场占有率、资本负债表增长上限，{13}并结合其他保护措施，潜在地防止金融危机中道德危机问题的扩散。[17]
结论
这次金融危机给全世界的公共机构，包括所有的竞争法执法机构，带来前所未有的挑战。在欧洲，国家救济法律法规确保了委员会能够在早期参与成员国金融救济方案的制定，也是由此原因，截至目前，委员会在危机控制中扮演了至关重要的角色。鉴于当前之形势，尽管经济与金融政策的制定仍掌握于成员国手中，但欧盟委员会在各成员国之间所起到的协调作用不可忽视。为解决这一问题，委员会采取了果断的措施，通过提高危机反应速度与决策快速审查能力，为遭受危机影响的企业提供了一个高效的司法保障体系，另一方面，确保适用法律体系的明确性与稳定性。更主要的是，委员会努力展示欧洲竞争法在危机中的适应能力，特别是竞争法中的国家救济政策适应力，例如：将保护市场竞争与其他重要的经济政策融洽结合。迄今为止，一切堪称完美，但前路仍漫漫修远！
【作者简介】
达米安·杰勒德(Damien Gerard)(1967- )，男，比利时人，比利时鲁汶大学欧洲法教授、研究员，法国巴黎第五大学客座讲师；比利时鲁汶大学法学院，比利时佛拉芒。
【注释】See, e.g., the inflow in customers and deposits that followed the nationalization of UK bank Northern Rock, just weeks after it suffered from an impressive bank run in September 2007, which signaled the contamination of Europe by the subprime crisis.
Note that a third phase is now emerging following the contamination of the crisis to the real economy. An important concern is now the need to keep a stable flow of credit to the economy, which may require providing capital incentives to fundamentally sound banks while avoiding abuses in the use of public funding. The Commission has addressed that issue in a new communication of December 5, 2008: Communication from the Commission-The recapitalization of financial institutions in the current financial crisis: limitation of aid to the minimum necessary and safeguards against undue distortions of competition, C (2008) 8259 final.
See, e.g., Commission Decision of October 10, 2008 in Case NN 51/2008-Denmark/Guarantee scheme for banks in Denmark, C(2008)6034, P.40 and Commission Decision of October 13, 2008 in Case N 507/2008-UK/Financial support measures to the banking industry in the UK, C(2008)6058, P.44.
For a comprehensive list of the decisions adopted since October 2008 pursuant to Article 87(3) (b) EC, see http://ec.europa.eu/competition/sectors/financial_services/financial_crisis_news_en.html.
In a nutshell, Article 87(3)(b) EC, compared to State Aid rules for rescuing and restructuring firms in difficulty adopted pursuant to Article 87(3)(c) EC, offers additional flexibility as to the nature of acceptable aids (e.g., structural interventions), the duration thereof (i.e., going beyond 6 months) and, particularly, the absence of structural compensatory measures.
See, e.g., Case NN 70/2007-UK/Northern Rock, decided on December 5, 2007 following a notification filed on November 26, 2007 but with background information already provided to the Commission on September 28 and October 14, 2007.
Minutes of the 1845th meeting of the Commission, October 1, 2008, PV(2008) 1845 final, P.10.4; Communication from the President in agreement with Ms Kroes-Temporary empowerment, SEC(2008) 2575/2. The authorization of "emergency rescue measures" includes: (i) decisions finding that rescue measure does not constitute aid pursuant to Article 4(2) of Regulation 659/1999; (ii) decisions not to raise objections against a notified aid pursuant to Article 4(3) of Regulation 659/1999; and (iii) decisions not to raise objections against a non notified (so-called "unlawful") aid pursuant to Articles 13(1) and 4(3) of Regulation 659/1999.
See, e.g., WestLB riskshield/Germany case,P.41; Sachsen LB, P.94. See also Joined Cases T-132 and 143/96, Freistaat Sachsen and Volkswagen AG/Commission ECR II-3663, P.167.
Communication from the Commission-Community Guidelines on State Aid for Rescuing and Restructuring Firms in Difficulty, cited above, note 11, in particular P.24(a), footnote 3.
Quigley and A. M. Collins, in their leading treati See, e.g., Commission Decision of October 10, se on EC State aid law (Hart, Oxford, 2003) refer to aid granted by several Member States in the mid-1970s to protect employment during recession and to the privatization of hundreds of Greek firms and public-sector banks as part of a national economic recovery plan in the early 1990s (P.86).
See "The Enterprise Act 2002 (Specification of Additional Section 58 Consideration) Order 2008", available at http://www.opsi.gov.uk/si/si2008/uksi_20082645_en_1#f00001 (last visited on December 1, 2008).
Decision by Lord Mandelson, the Secretary of State for Business, not to refer to the Competition Commission the merger between Lloyds TSB Group plc and HBOS plc under Section 45 of the Enterprise Act 2002, October 31, 2008 (available at http://www.berr.gov.uk/files/file48745.pdf, last checked on December 1, 2008). The decision has been appealed by a group of account holders, bank employees, and business people calling themselves the "Merger Action Group" (see the submission available at http://www.mergeractiongroup.org.uk/, last visited December 2, 2008).
Communication from the Commission-The application of State aid rules to measures taken in relation to financial institutions in the context of the current global financial crisis, cited above, note 25,P.16. Compliance with that criterion was at the core of discussions between the Commission and Ireland during the review of the general guarantee scheme for banks in Ireland (Commission Decision of October 13, 2008 in Case NN 48/2008-Ireland/Guarantee scheme for banks in Ireland, C(2008)6059).
Generally, fees are based on market benchmarks comprising various elements including a measure of institution-specific risk and a fixed mark-up designed to compensate the State. In that respect, the European Central Bank issued on October 20, 2008 Recommendations on government guarantees on bank debt, which have, since then, often been referred to by Member States.
The level of remuneration payable to the State was at the core of discussions between the Commission and the French government in relation to a capital-injection scheme for banks designed to stabilize financial markets and incentivize French banks to increase lending to the real economy (see Commission press-release IP/08/1900 of December 8, 2008: State aid: Commission authorizes French scheme to inject capital into certain banks).
Communication from the Commission-The application of State aid rules to measures taken in relation to financial institutions in the context of the current global financial crisis, cited above, note 25, P.26-27.
The U.K. Bank Recapitalization Scheme imposes, among other items, that no cash bonuses be paid to Directors for the current year''s performance, appointing new independent directors, making commitments to maintain the availability and active marketing of competitively priced lending to homeowners and to small business, and supporting schemes to help people struggling with mortgage payments to stay in their homes (UK, 12). The German scheme includes similar behavioral constraints (e.g., with respect to executives'' remuneration and bonuses) and conditions the distribution of dividends to shareholders with the sale of the Recapitalization Fund''s shares to a third party or the repurchase thereof (Commission Decision of October 27, 2008 in Case N 512/2008-Germany/Rescue package for credit institutions in Germany, C(2008)6422, 14 and 57). The French capital-injection scheme also requires beneficiary banks to adopt measures concerning the remuneration of senior management and market operators (including traders) and limiting severance packages for executives (see Commission press-release IP/08/1900 of December 8, 2008: State aid: Commission authorizes French scheme to inject capital into certain banks).
