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In response to the recent Financial Crisis -after it had been widely accepted that “a serious disturbance in the economy of Member States” had occurred, and that several measures were required to remedy this disturbance, various Commission communications were adopted and these include: The Communication on the application of State aid rules to measures taken in relation to financial institutions in the context of the current global financial crisis (hereinafter "the Banking Communication"), its Communication on the recapitalisation of financial institutions in the current financial crisis: limitation of aid to the minimum necessary and safeguards against undue distortions of competition (hereinafter "the Recapitalization Communication"), and its Communication on the return to viability and the assessment of restructuring measures in the financial sector in the current crisis under the State aid rules (hereinafter "the Restructuring Communication").” The Banking Communication will constitute the focus of this study. Are rescue aids (as distinguished from other forms of State aids) justified even where the possibility exists that rescue attempts are unlikely to succeed? Should rescue aids still be granted at a point when other measures such as winding down measures and the provision of other forms of liquidity assistance could be introduced? At what point should the Government decide upon the nationalization of ailing institutions? Furthermore, should State aids be provided to all classes of financial institutions which are considered to qualify for such aid – as stated within the Banking Communication? These questions interalia constitute questions which are not only raised in this paper, but which this paper aims to address through a consideration of different State aid rescue and restructuring measures, as well as reference to two rescue aid cases, namely those of Bradford & Bingley (State aid NN 41/2008 – United Kingdom Rescue Aid to Bradford & Bingley) and Hypo Real Estate (State aid NN 44/2008 – Germany Rescue Aid for Hypo Real Estate).In addition, the impact of the recent crisis on the choice of legislation and legal basis for compatibility assessments will be highlighted. Whereas State aid to individual undertakings in difficulties is usually assessed under Article 87 (3)(c) of the EC Treaty and the Community Guidelines on State aid for rescuing and restructuring firms in difficulty, the systemic relevance of a financial institution and the impact of such an institution's failure on the economy, has been reflected by the preference for Article 87(3)(b) EC Treaty and Article 107(3)(b) TFEU. [ABSTRACT FROM AUTHOR]

The main argument of this paper is, namely, the need for greater emphasis on disclosure requirements and measures - particularly within the securities markets. This is justified on the basis of lessons which have been drawn from the recent Financial Crises, one of which is the inability of bank capital requirements on their own to address funding and liquidity problems. The engagement of market participants in the corporate reporting process, a process which would consequently enhance market discipline, constitutes a fundamental means whereby greater measures aimed at facilitating prudential supervision could be extended to the securities markets. Furthermore, the paper illustrates how through Pillar 3, market participants like credit agencies can determine levels of capital retained by banks - hence their potential to rectify or exacerbate pro cyclical effects resulting from Pillars 1 and 2. Challenges encountered by Pillars 1 and 2 in addressing credit risk are reflected by problems identified with pro cyclicality, which are attributed to banks' extremely sensitive internal credit risk models, the level of capital buffers which should be retained under Pillar Two. Such issues justify the need to give greater prominence to Pillar 3. In elaborating on Basel II's pro cyclical effects, gaps which exist with internal credit risk model measurements, Basel II's risk measurements, along with the increased prominence and importance of liquidity risks - as revealed by the recent financial crisis, and proposals which have been put forward to mitigate Basel II's procyclical effects will be addressed. [ABSTRACT FROM AUTHOR]