Golden shares in the European Union: Shall they overcome

Golden shares in privatised companies are one of the most controversial issues in European law. These special control rights are used by many Member States in order to retain control over recently privatised companies operating in economic sectors of national interest. Golden shares may conflict with basic freedoms of the Treaty establishing the European Community, especially the free movement of capital, and they may hamper the functioning of the Internal Market. The rulings of the European Court of Justice delivered between 2000 and 2005 have contributed to develop a legal framework for golden shares. In essence, whereas discriminatory measures based upon nationality are prohibited, non-discriminatory measures are permitted provided that the restrictions are justified on the basis of the exceptions enshrined in the Treaty or other public interest grounds and fulfil the principles of proportionality and legal certainty. Thus, the Court made clear that special rights in privatised companies can only be compatible with European law under strict and specific conditions. Golden shares, for instance, cannot be introduced in order to support the economic performance of a Member State. This dissertation argues that the European Court of Justice found a proper balance between the requirements of a common market in the EU, the legitimate interests of investors acquiring shares in privatised companies and the protection of the general interests of the Member States. Further, the decisions should be welcomed as they constitute a milestone in the development of the free movement of capital. However, mainly the notion of legal certainty is subject to criticism. Hopefully, this uncertainty will be reduced soon by the Court. As a result of the case law of the Court and the cases currently under review by the Court and the Commission, in many Member States golden share arrangements have been abolished or a deadline is given.