Golden shares and free movement of capital - European Law ...

Golden shares and free movement of capital
by
Cyril GRADIS
Student at the University of Fribourg
Switzerland
2010

Table of Content
TABLE OF CONTENT ............................................................................................... II
LIST OF AUTHORITIES .......................................................................................... III
LIST OF ABREVIATIONS ......................................................................................... V
I. INTRODUCTION .................................................................................................... 6
II. GOLDEN SHARES ................................................................................................ 7
A. Definition ........................................................................................................................................................... 7
1. Golden shares in a narrow sense – participation dependent Golden share ..................................................... 7
2. Golden shares in a broad sense – participation independent Golden share .................................................... 8
B. Content .............................................................................................................................................................. 8
1. Acquisition restrictions ................................................................................................................................... 8
2. Restriction to management decisions ............................................................................................................. 9
3. Rights to appoint company officers .............................................................................................................. 10
C. Formal embodiment ....................................................................................................................................... 10
1. Absolute and preventive proscriptions ......................................................................................................... 11
2. Veto powers.................................................................................................................................................. 11
3. Notification requirements ............................................................................................................................. 11
III. FREE MOVEMENT OF CAPITAL .................................................................... 11
A. Definition ......................................................................................................................................................... 11
1. The freedom and the internal market ............................................................................................................ 12
2. The freedom in the context of European corporate law................................................................................ 12
B. Scope of application ........................................................................................................................................ 13
1. Substantive scope of application .................................................................................................................. 13
2. Personal scope of application ....................................................................................................................... 13
3. Justified restraints to the fundamental freedom ............................................................................................ 14
IV. GOLDEN SHARES AS A RESTRAINT TO THE FREE MOVEMENT OF
CAPITAL ................................................................................................................. 14
1. A closer look at the restraint ......................................................................................................................... 14
2. Should all Golden shares go under scrutiny? ............................................................................................... 15
3. Rejected justifications .................................................................................................................................. 16
4. Alternative approaches ................................................................................................................................. 17
V. CONCLUSION ..................................................................................................... 18
II

List of Authorities
ARMBRÜSTER, Christian, „Golden Shares“ und die Grundfreiheiten des EG-Vertrages“, NJW 2002
BASEDOW, Jürgen, „Der kollisionsrechtliche Gehalt der Produktfreiheiten im europäischen
Binnenmarkt“, RabelsZ 1995
CASTRO, Julio O. De, / UHLENBRUCK, Nikolaus, “Characteristics of Privatization: Evidence from
developed, less-developed, and former communist countries”, Journal of International Business
Studies 1997
CZIGLER, Bianca M., Golden Shares und die Judikatur des Europäischen Gerichtshofes unter
besonderer Berücksichtigung des VW-Gesetzes, Hamburg 2008
EHRHARDT, Olaf / TIEDEMANN, Mario, „Golden Shares in der Europäischen Union, das VW-Gesetz
und der Einfluss auf den Markt für Unternehmenskontrolle“, M & A Review 2005
GAYDARSKA, Nadia / RAMMELOO, Stephan, „The legality of the „golden share“ under EC Law”,
Maastricht Faculty of Law, Working Paper 2009
GRUNDMANN, Stefan / MÖSLEIN, Florian, „Die Goldene Aktie - Staatskontrollrechte in Europarecht
und wirtschaftspolitischer Bewertung“, ZGR 2003
HINDELANG, Steffen, The Free Movement of Capital and Foreign Direct Investment – The Scope of
Protection in EU Law, Oxford 2009
KLEINSCHMIT, Florian, Deutsches Volkswagengesetz und Europäische Kapitalverkehrsfreiheit: Zur
Auslegung einer Grundfreiheit unter besonderer Berücksichtigung der „Goldenen Aktien“ – Judikatur
des EuGH, Göttingen 2004
KRAUSE, Hartmut, „Von „goldenen Aktien“, dem VW-Gesetz und der Übernahmerichtlinie“, NJW
2002
OHLER, Christoph, Europäische Kapital- und Zahlungsverkehrsfreiheit, Berlin/Heidelberg/New York
2002
III

PETERS, Cees, „Capital Movements and Taxation in the EC”, EC Tax Review 1998
PIESSKALLA, Michael, Goldene Aktien aus EG-rechtlicher Sicht - Eine Untersuchung staatlicher
und privater Sonderrechte in Wirtschaftsgesellschaften unter besonderer Berücksichtigung der
Kapitalverkehrsfreiheit, Hamburg 2006
PIESSKALLA, Michael, „Anmerkung zum EuGH Urteil vom 23.10.2007 (VW-Gesetz)“, EuZW 2007
SCHWARZE, Jürgen, Europäisches Wirtschaftsrecht – Grundlagen, Gestaltungsformen, Grenzen,
Baden-Baden 2007
STEINDORFF, Ernst, „Anmerkung zum Allue II Urteil“, JZ 1994
SZYSZCZAK, Erika M., „Golden shares and Market Governance”, Legal Issues of Economic
Integration 2002
WEISS, Michael, Goldene Aktien im Lichte der Rechtsprechung des EuGH – Unter besonderer
Berücksichtigung des harmonisierten Übernahmerechts, Baden-Baden 2008
IV

E.g. For example
List of Abreviations
EADS European Aeronautic Defence and Space Corporation
ECJ European Court of Justice
E.C.R. European Court Reports
Et seqq. And the following pages
EuZW Europäische Zeitschrift für Wirtschaftsrecht
Ibidem Same page
Idem Same work or same case
JZ Juristenzeitung
NJW Neue Juristische Wochenschrift
RabelsZ Rabelszeitung
Para. Paragraph
TFEU Treaty on the Functioning of the European Union
ZGR Zeitschrift für Unternehmens- und Gesellschaftsrecht
V

I. Introduction
The starting point of the issue dealt within this paper is the massive number of privatisations
in Europe. This was first triggered by Margaret Thatcher’s neo-liberal reforms, enacted in
Great Britain during the 1980’s. This period saw the conversion of many public companies
into different kinds of corporations and their consecutive transfer to private ownership 1 .
Conversions of this kind aim, on the one hand, at creating competitive markets in previously
State-controlled segments and, on the other hand, at enhancing the competitiveness of large
public companies. These measures were also intended to reduce State allowances and
generally fight government’s debt overload 2 .
However, States are usually reluctant to give up all their authority on such powerful segments
of their national economies (mainly areas where the company provides services of public
interest). “Golden shares” 3 constitute an effective solution to step out while still holding
significant influence.
General company law is shaped by a whole network of principles that apply concurrently.
One of these general principles is the principle according to which a shareholder has a
legitimate right to take part in the management in accordance with its stake in the company –
ergo the more shares an investor acquires in the company, the more power he will gain.
However, when Golden shares come into play, the holding State maintains certain privileges
which secure a more favorable situation than the other shareholders. As a direct consequence,
the affected company loses most of its attractiveness.
The indicated decrease of attractiveness is problematic in regards to the Internal Market, a
system based on competition and freedom of movement in goods, capital, people and
services. Transferring State assets to the private sector is seen, in SZYSZCZAK’s view, as an
essential component of the processes of European integration, even becoming one of the tacit
criteria for a successful accession to the EU 4 .
1 EHRHARDT/ TIEDEMANN, 367.
2 CASTRO/UHLENBRUCK, 124.
3 The expression “Golden shares” is usually presented with inverted comma as it corresponds to an expression
currently used by now in legal and economical circles. However, for friendly reading reasons, the inverted
comma won’t be used all through the text.
4 SZYSZCZAK, 257.
6

The following analysis will focus on the area of conflict between Golden shares and the
fundamental freedoms – notably under the scope of the freedom of movement in capital. The
first part will examine the concepts of Golden share (II.) and freedom of movement in capital
(III.) as well as their relevance in practice and case law. The second part of the paper will
adress their relations, conflicts and convergences (IV.).
II. Golden shares
The coming chapter will address the definition of Golden share (A.) as well as its content and
common embodiment (B. and C.).
A. Definition
Golden shares provide special rights which can be exercised by State authorities 5 . When
applying their special rights the authorities can appear as a regular shareholder. This is called
a participation dependent Golden share (1.). Alternatively, the authorities can also create the
privilege by enacting special laws – these are called participation independent Golden shares
(2.).
1. Golden shares in a narrow sense – participation dependent Golden share
This kind of Golden share implies the beneficiary’s sharing of the company’s registered
capital. The privilege emanates from the fact of shareholding. One single share, if furnished
with a number of special rights (veto privileges, consent referred matters, rights to appoint
company officers, etc.) can be sufficient to reverse all the power games in the company.
Therefore, what is decisive in the creation of such privileges is not the number of shares held
in the company, but the fact that they are in the hands of a public entity. The principle of
influence proportionate to the stake holding is deliberately disregarded 6 . The issuing of such
shares however needs to be provided in the company’s statutes 7 .
5
PIEßKALLA, 11.
6
EHRHARDT/ TIEDEMANN, 367.
7
Idem, 12.
7

2. Golden shares in a broad sense – participation independent Golden share
Participation independent Golden shares are usually created by States via privatisation acts 8 -
specific and mandatory in opposition to general and non-mandatory corporate law. No
shareholding is required since the State’s privileges exist by virtue of law.
B. Content
Golden shares beneficiaries usually enjoy one or more of the three following privileges: rights
to restrict share acquisitions (1.), rights to restrict management decisions (2.) and rights to
appoint company officers (3.).
1. Acquisition restrictions
By means of directly restricting share acquisitions, the beneficiary is able to influence the
company’s whole shareholding structure. These restrictions allow to frustrate alteration in the
majority proportions or to prevent new investors from stepping in the company’s capital. The
beneficiary can either approve or disapprove the acquisition, with the consequence that the
acquisition agreement will simply be void vis-à-vis the company. In other words, none of the
shareholder’s rights are transmitted to the acquirer 9 .
For example, the French Decree N° 93-1298 of 13 December 1993 10 concerning the energy
provider Société Nationale Elf-Aquitaine provided, on the one hand, for an approval system
setting certain threshold limits to share acquisitions (10%, 20%, 33,3%). On the other hand,
the Decree allocated to the French Government the right to oppose any decision to transfer or
use as securities the assets of several subsidiary companies of the parent company Elf-
Aquitaine 11 .
8 PIEßKALLA, 12.
9 Idem, 21.
10 Text available under: http://www.legifrance.gouv.fr/initRechTexte.do.
11 ECJ Case C-483/99, Commission v. France [2002], E.C.R. I-4781.
8

2. Restriction to management decisions
These privileges aim at guaranteeing the Golden shareholder a controlling position in the
company by restricting the other actor’s co-management rights 12 .
a. Loss of voting rights
The safest way to eliminate opposing views is to generally limit their voting rights. Voting
rights constitute the most important instrument for non-executives to impact the company’s
destiny. A very effective tool for the beneficiary is the „maximum-voting right“, according to
which the share purchaser - upon a certain acquisition threshold – is deprived from its voting
rights 13 . Thus the beneficiary is himself either immunised against the restriction, or the
effectiveness of the restriction can be conditioned to its final decision 14 .
b. Asset disposal restrictions
Restricting disposal is interesting for a Golden shareholder whose interest is to maintain
control on the company’s strategic assets, e.g. assets which are essential to the company’s
main activity 15 . For example, a water supply company may not be allowed to sell or mortgage
one of its water treatment facilities without that shareholder’s permission.
c. Asset purpose limitations
The business activity of a company can also be prejudiced by the re-dedication of the
company’s property assets. This is namely the case when Members of the management decide
to use the assets for a new purpose. For example if a machine park is let to a third person, it is
not available anymore for the company’s usual production process 16 .
12 PIEßKALLA, 26.
13 These restrictions should not be mixed with preferred shares which lack of voting right is compensated with a higher
dividend.
14 PIEßKALLA, 27.
15 Ibidem.
16 Idem, 30.
9

Article 3 of the Belgian Arrêté Royal of 10 June 1994 17 provided for such a limitation. The
Energy Minister of the Kingdom of Belgium was able to block all rededication of the power
supply network of the national energy provider S.N.T.C 18 .
d. Statutes amendment limitations
The statutes can be considered as the company’s backbone. Amendments of such a
fundamental text usually require a qualified majority. Golden shares often grant their
beneficiary a veto power or at least the possibility to have a say in the decision-making
process 19 .
3. Rights to appoint company officers
By having the right to appoint fully entitled officers who may act on board sessions and
influence important decisions, the beneficiary possesses a disproportionate control on the
company.
In the VW-Gesetz Case 20 the Federal Republic of Germany and the Land Lower Saxony were
granted two seats each in the supervisory board. The European Commission established that
such an unjustified deviation from the general corporate law generated a special right in
favour of the two above mentioned beneficiaries.
C. Formal embodiment
This part will focus on the formal side of the special rights, i.e. on their implementation and
application in practice, and on three different forms: absolute and preventive proscriptions
(1.), veto powers (2.) and notification requirements (3.).
17
Text available under : http://www.ejustice.just.fgov.be/loi/loi.htm.
18
ECJ Case C-503/99, Commission v. Belgium [2002], E.C.R. I-4809.
19
PIEßKALLA, 30.
20
ECJ Case C-112/05, Commission v. Germany [2007], E.C.R. I-8995.
10

1. Absolute and preventive proscriptions
Absolute proscriptions prohibit share acquisitions or certain management decisions
automatically and without exception 21 . Preventive proscriptions depend on the approval or the
ratification of the beneficiary.
Article 2 Paragraph 1 of the already mentioned French Decree conditioned the share
acquisition of more than 10% in Elf-Aquitaine to the prior consent of the French Minister for
Economic Affairs.
2. Veto powers
The veto power allows the beneficiary to block lawfully completed, but temporarily
ineffective, legal acts within a limited timeframe. After the time limit is over, the legal act
becomes effective 22 .
3. Notification requirements
Notification requirements simply aim at informing the beneficiary of a preventive proscription
or a veto power. They don’t have any effect on the effectiveness of the legal act, and are
usually to be found in the form of collateral duties 23 .
III. Free movement of capital
The following chapter will address the definition of free movement of capital (A.) as well as
its scope of application and justifiable breaches (B.).
A. Definition
The free movement of capital - provided in Article 63 et seqq. TFEU - shall be first analysed
in a first step in relation to the treaty provisions setting the basis for an internal market (1.),
21 PIEßKALLA, 31.
22 Ibidem.
23 Ibidem.
11

and then more generally in the context of a what we today call “European Corporate Law”
(2.).
1. The freedom and the internal market
The European economic law is constituted of the fundamental freedoms, the competition law
and the internal market legislation 24 . According to Article 26 Paragraph 2 TFEU, the internal
market shall comprise an area without internal frontiers in which the free movement of goods,
persons, services and capital is ensured in accordance with the provisions of the Treaties. The
European Union citizens and companies shall be granted the right to be active beyond their
national boundaries and to be protected from illegal violations by the Member States 25 .
The free movement of capital is provided in articles 63 et seqq. TFEU and belongs to the core
elements of the Economic and Monetary Union 26 . Article 63 TFEU prohibits limitations
between Member States, but also between Member States and non-Member States. The
inclusion of third States serves the removal of external frontiers and help to achieve the
liberalisation of the capital movements. Already existing international connexions between
the financial markets shall be strengthened in order to increase trust in the Economic and
Monetary Union as well as in the Euro 27 . The provision also applies to Golden shares in case
of cross-border share acquisitions 28 .
2. The freedom in the context of European corporate law
Especially after the Centros Case 29 , European integration in the field of corporate law has
rather focused on the freedom of establishment. Conversely to the latter, cases in relation with
the free movement of capital – which mostly concerned tax law matters – had not triggered a
massive interest in the academic circles until the Golden share cases 30 .
As it is unanimously accepted that the free movement of capital is applicable to all types of
transactions referred to in the Directive on the movement of capital 31 , it was no surprise that it
24
SCHWARZE, Para. 45.
25
Idem, Para. 52.
26
Idem, Para. 73.
27
OHLER, 1.
28
KLEINSCHMITT, 40.
29
ECJ Case C-212/97, Commission v. Denmark [1999], E.C.R. I-1459.
30
PETERS, 5.
31
Council Directive 88/361/EEC of 24 June 1988 for the implementation of Article 67 of the Treaty.
12

was also applicable to the Golden shares cases 32 . The Directive mentions corporations or
direct investments next to savings investments which were always considered as part of the
freedom at stake.
B. Scope of application
After having determined the free movement of capital’s personal (1.) and substantive (2.)
scope of application, this section will analyse under which conditions a restraint to the
freedom can be justified (3.).
1. Substantive scope of application
Article 63 Paragraph 1 TFEU prohibits restraints to the free transfer of capital between
Member States as well as between Member States and third States, i.e. only cross-border
situations 33 . The provision goes further than the mere elimination of nationality-based
discriminations between financial actors 34 , since restraints, even if not discriminatory, may as
well divert potential foreign investors. Therefore, all kinds of restraints fall under the scope of
Article 63 TFEU 35 .
2. Personal scope of application
A Member State is liable for any restraint caused in exercise of its public authority. This
comprises the enactment of any administrative provision, administrative practice as well as all
kind of action emanating from a public agency 36 . Based on the principle of direct applicability
of the fundamental freedoms, European Union citizen may invoke Article 63 TFEU before
national courts and administrative authorities.
32
OHLER, 4.
33
GRUNDMANN/MÖSLEIN, 317.
34
Ibidem.
35
GRUNDMANN/MÖSLEIN, 320.
36
HINDELANG, 208.
13

3. Justified restraints to the fundamental freedom
The free movement of capital may, in principle, only be restrained by a national provision if
one of the grounds mentioned in Article 65 TFEU is given, or when over-riding reasons of
general interest justify such a restraint 37 .
According to the formula of the ECJ in the Gebhard Case and its four-criteria test, any
provision of a Member State which has the effect of making the exercise of that freedom less
attractive, may be struck down by the Court unless it:
� Is applied in a non-discriminatory manner;
� Is justified by imperative requirements of the public interest;
� Secures the attainment of their objective;
� Is not disproportionate in their effect 38 .
The already mentioned over-riding reasons of general interest constitute unwritten grounds of
justification 39 . However, a State is only allowed to rely on such grounds if the restraint is
intended to protect a definite group of people. A blank reference to general politico-
economical ends is not sufficient 40 .
IV. Golden shares as a restraint to the free movement of capital
Although implementing Golden shares is commonly viewed as problematic in regards to
Article 63 et seqq. TFEU (1.), some kind of Golden shares should not fall automatically into
this category (2.). Finally, some justification grounds which were brought up to the Court
however not admitted shall be further analysed (3.).
1. A closer look at the restraint
Basing itself on the free capital movement directive, the ECJ considers the trading in
corporate equity participations and securities on the capital markets as part of the capital
37 ARMBRÜSTER, 224.
38 Idem 225; ECJ Case C-55/94, Gebhard [1995], E.C.R. I-4165.
39 GRUNDMANN / MÖSLEIN, 317.
40 Ibidem.
14

movement 41 . Therefore, provisions which restrain share acquisitions in a company or hinder
foreign investors to purchase equities constitute restraints to the free movement of capital 42 .
Direct investment also allows to control and play an active role in the company’s life. Since
Golden shares do not only restrict the direct acquisition of shares, the ECJ considered that a
restraint is already given, when a legal act renders an investment less attractive 43 . Such
restraints are called “indirect acquisition restrictions”.
2. Should all Golden shares go under scrutiny?
Following what has been said in the previous section, one could think that any legal provision
which would potentially affect the shareholder’s decisive power constitutes an illegal
restraint. In consequence, a general panic developed in the 90’s towards the apparently all
mighty fundamental freedoms. Some authors even described it as a “horror iuris” 44 . Some of
these charges require further analysis.
The ECJ is empowered to scrutinise national provisions which do not fall under private
autonomy, i.e. solely mandatory law 45 . Therefore, the compatibility test with the fundamental
freedoms is limited to the mandatory provisions of the Member States’ corporate law 46 .
GRUNDMANN considers this limitation problematic since some corporate law provisions left to
the parties’ autonomy sometimes constitute much harsher restraints for external investors 47 .
Another reproach goes to the too quickly made assumption of the multi-State and cross-border
effects of Golden shares. The potential for cross-border transactions always exists in case of
shares traded on internationally accessible stock markets. However, the potentiality is much
more hypothetical in case of a not listed private company 48 . To avoid such legal speculation,
the Golden share scrutiny process should be limited to listed companies.
Finally, regard should be given to the intensity of freedoms’ restraints. When provisions do
not block but only make an investment less attractive, it is questionable if the cross-border
41
Ibidem.
42
KRAUSE, 2748.
43
ECJ Case C-112/05, Commission v. Germany [2007], E.C.R. I-8995.
44
STEINDORFF, 95 ; KRAUSE, 2749.
45
ECJ Case C-339/89, Alsthom Atlantique [1991], E.C.R. I-107.
46
BASEDOW, 28.
47
GRUNDMANN/MÖSLEIN, 322.
48
Idem, 323.
15

capital transfers is extensively affected 49 . Often investors’ prospectuses often list dissuasive
provisions and business environments. Golden shares with no dissuasive effect should not,
therefore, be considered unlawful 50 .
3. Rejected justifications
a. Public ownership
According to Article 345 TFEU, the Treaties shall in no way prejudice the rules in Member
States governing the system of property ownership. The Advocate General COLOMER
considered this provision as the neutrality guarantee regarding the Member States’ economic
ownership, and a pertinent justification for equity participations in companies, namely
through Golden shares 51 .
The opinion was squarely dismissed by the ECJ 52 which simply stated that the existing State
ownership was not excluded from the scope of the Treaties’ main principles. This is
reinforced by the fact that Article 345 TFEU does not mention the establishment of strategic
placements (for example in a company), but focuses on the Member States basic economic
ownership.
b. Public policy
Public policy is understood as all the principles which affect the State’s essential interests.
Public security, for instance, covers all dangers threatening the State’s existence and
institutions. Considering the free movement of capital, this would encompass rules preventing
tax fraud, money laundering, drug traffic and terrorism 53 .
In the Campus Oil Case rendered concerning the free movement of goods, the ECJ accepted
that securing petroleum supply could constitute a public security issue, since not only the
49 GRUNDMANN/MÖSLEIN, 323.
50 Example of such prospectuses: CalPERS (California Public Employees’ Retirement System), International Corporate
Governance, German Market Principles (1999).
51 GRUNDMANN/MÖSLEIN, 317.
52 ECJ Case C-483/99, Commission v. France [2002], E.C.R. I-4781.
53 GRUNDMANN/MÖSLEIN, 317.
16

functioning of the economy but also all the providing of public services would be
endangered 54 . This could, in turn, threaten the survival of its population.
This case law was assigned as well to the free movement of capital. In the event of Golden
shares, the test focuses on the public interest which the company is required to fulfil –
amongst others the security and basic supply interests. Justification, however, may only be
admitted in case of serious endangerment 55 . Pure economic grounds or financial interests –
not to mention protectionist measures - are of a lower priority than the Internal Market’s
interests, and that even if the measures intend to save jobs 56 .
4. Alternative approaches
In order to control the compatibility of Golden shares with the free movement of capital, the
ECJ often took public security as a benchmark 57 . By using this method, the Court disregarded
other important criteria relevant for the examination. This surely contributed to the
development of the very rigid case law we know.
In order to develop new criteria, the Court could resort to other examination benchmarks (see
above, III.B.3). In this regard GAYDARSKA and RAMMELOO propose to focus rather on the
proportionality test 58 . This method seems preferable because it allows a closer examination of
each individual case and permits the creation of more specific (sub-)criteria. For example,
Golden shares should be considered as lawful when the powers exercised by the State in the
company are clearly defined (i.e. also for the foreign investor identifiable), in order to
guarantee the maximum freedom to the management and the board.
In the future, such state intervention will also have to be more clearly and precisely defined.
According to GRUNDMANN and MÖSLEIN, “public security” as a mandatory reason of public
good does not refer only to the prevention of public danger, but also the safeguarding of the
basic needs of a modern society 59 . They continue: “This, however, only means that particular
interests have to be specified, like possibly the protection of workers. With respect to the
principle of proportionality and namely the question of the least restrictive measure, more
54
ECJ Case C-72/83, Campus Oil [1984], E.C.R. I-2727.
55
EHRHARDT/ TIEDEMANN, 368.
56
Ibidem.
57
Especially visible in the Cases C-483/99 (Footnote 10) and C-503/99 (Footnote 17).
58 GAYDARSKA/ RAMMELOO, 15.
59 GRUNDMANN/MÖSLEIN, 328.
17

detailed specifications in substance as well as in form will be needed on the national level”.
Of course, they follow, the more intense the restriction the more demanding and precise the
requirements should be 60 .
V. Conclusion
The ECJ’s decisions relating to Golden shares were under different aspects unsatisfactory and
left many questions unanswered, namely the treatment of other, often more harmful,
mandatory provisions such as, for example, voting caps in listed companies. However, the
biggest problem is that the Court chose to walk a hard line by setting very high requirements
of admissibility, while a more case-to-case approach would have been, in my opinion, more
appropriate on such sensible issues. GAYDARSKA and RAMMELOO’s proposition to give more
weight to the proportionality test and less importance to the very questionable criterion of
public security seems to be an appropriate way to reach a more flexible assessment of the
Golden shares. One could have thought that this highly restrictive case law, which probably
caused the German and French failed attempt to introduce Golden shares in EADS 61 , tolled
the knell of the Golden share in Europe.
However, in the course of the financial crisis several huge companies - mostly banks and
insurance companies - were at least partly de facto nationalised. This was enough to revive
this questionable relation between the State and its blue-chip companies, the so-called
“National Champions”. The debates around their “re-privatisations” will be lively and, who
knows, the after-crisis period may be the perfect scene for a golden come-back.
60 GRUNDMANN/MÖSLEIN, 329.
61 Article from the BBC Website: http://news.bbc.co.uk/2/hi/business/7283483.stm.
18