The New and Shy Approach of the Court of Justice Concerning Golden Shares

Abstract

The Court of Justice has always reasoned its judgments concerning golden shares on the basis of Art. 63 TFEU, despite claims before it have also involved submissions of breach of Art. 49 TFEU. Gradually, it has changed its approach and freedom of establishment has become an independent focus when assessing whether use of golden shares is lawful. This paper is aimed to grasp the new trend. Firstly, it analyses the original setting of the question by the Court in order to understand how free movement of capital is still important in the assessment of golden shares and why there is no definitively separation from it. Successively, it examines motivations and the modalities of the change of the freedom involved. Finally, it seeks to infer the implications and extent of the variation in progress.