摘要
国家援助通常会损害竞争,破坏市场秩序,为此欧盟法规定成员国政府一般不得以任何形式,利用公共财政资源对境内个别企业或行业实施援助。然而,成员国政府往往通过其控制的国有企业实施援助。在这种情况下,竞争执法者在做出行政裁决之前需解决两个关键问题:其一,国有企业的行为是受政府影响还是属于自主经营行为?其二,该行为是否符合市场经济条件下私人投资的规律?这两个问题在欧洲法院判例中分别被归纳为"可归因性测试"和"市场投资人测试"。这两项原则对欧盟的国家援助执法起到重要的规范作用。
EU law forbids state aid 'granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods'.When faced with the reality that the Member States often grant aid through their control of public undertakings,European competition authorities are tasked with the finding of: 1.'Imputability',which implies that the public undertaking's behavior is traced back to the Member State government;and 2.that the aid in question cannot be explained by normal market investor behavior,hence the 'Market Economy Investor Test'.The development of case law has demonstrated that failing to apply either test will result in the Commission losing its case in front of the Court of Justice or the General Court.However,the increase in the Commission's burden of proof is matched by a measurable increase in its power of investigation,namely the 'Transparency Directive'.This balance of power helps ensure that on the one hand,public undertakings in the EU are not prejudiced and do not suffer from undue penalties;on the other,the Commission is not tasked overwhelmingly in digging the 'nitty-gritty' of the murky relationship between the Member States and public undertakings.
出处
《欧洲研究》
CSSCI
北大核心
2011年第6期95-106,6,共12页
Chinese Journal of European Studies
