Gallo: The CJEU vis-à-vis EU and non-EU investors, between national and european solidarity – golden shares, sovereign investment and socio-economic protectionism under free movement rules

ABSTRACT:

The fundamental issue underlying this essay is the tension between the EU’s aims of market integration on the one hand, and, on the other, the intervention of Member States in the economy and welfare provision and the exercise of public functions by national authorities in sensitive industrial sectors. In this respect I have focused on one specific aspect: the CJEU’s case law on the special powers held by the State in formerly public companies where the rights conferred on shareholders by ordinary law are reduced for the benefit of public entities.  Besides European golden shares, my contribution had dealt with the access to the EU’s market of non-EU public/private hybrids, namely sovereign investors such as sovereign wealth funds (“SWFs”) and state owned enterprises (“SOEs”).  The first aim of my research is to investigate in what sense, to what extent and for what reasons the golden shares jurisprudence represents a privileged – although atypical – sedes materiae to illustrate the content and extent of EU economic/market integration, the connection between the latter and the two interrelated concepts of social integration and EU solidarity, and the impact of such dual integration (both economic and social) on Member States’ solidarity. In this regard, three main questions arise: has the CJEU been too activist in condemning Member States with regard to privat(is)e(d) undertakings, or is its approach justified in the light of the EU’s free market objectives? Is the up-to-date case law likely to endanger the solidarity on which the provision of SGEIs is grounded? Is the scope of manoeuvre currently accorded to Member States too narrow to justify national socio-economic policies on golden shares under the free movement rules (especially, as will be seen further on, from the point of view of the exceptions to these rules)?. My second general aim is to identify the main concerns raised by the access of SWFs and SOEs to the EU market and, then, to assess whether action by the EU is welcome and necessary in this area. In this respect, the main questions are: is it conceivable a European golden share to restrict this kind of investments to be shaped on the basis of a European notion of solidarity? Should the CJEU be proactive and, for instance, admit ‘new’ Cassis-Gebhard overriding reasons of general interest that could not be admitted vis-à-vis intra-EU investments? Could the derogation provided for in Art. 65.1 b) allow for a restriction that is compatible with EU law? And in that case, what kind of connection would there be between national and European solidarity?

 

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