PRIVATIZATIONS, CONTROL DEVICES AND GOLDEN SHARE. THE HARMONIZING INTERVENTION OF THE EUROPEAN COURT OF JUSTICE

Abstract

The privatization processes showed up as a general tendency about twenty years ago. They have involved not only Italy,
but also many other countries within the EU (mostly France and the UK), with different legal implications.
Privatizations also involve a dynamic aspect: they are not successful unless the new by-laws of the firm allow regaining
competitiveness. Market globalization has a direct impact on national laws as it increases competition amongst
jurisdictions. The impact results in the awareness that investments shall be accomplished where there are lower
requirements to comply with. Yet many aspects of such bylaw changes are complex, as it seems an absurdity to
immediately and completely align the governance of privatized corporations to the governance of firms that have always
been private. Transitory measures are necessary in order to allow the State to control the sale of shares and to maintain a
voice within the controlling and managing boards. Hence, they have experienced the introduction of several tools shaped
on the needs of the State to protect fundamental interests of the national community: the “action spécifique” in France,
the golden share in UK, and in Italy, the “poteri speciali”. Before such complex situations arise, the Author points out
that it is useful to develop a comparative analysis of the tools of concentration and control that share the same functions.
It is clear how different levels of restraint come up and why it is important to establish if such devices of concentration and
control comply with the EC law, especially under the several decisions recently (since 2000) issued on these subjects by the
ECJ. The author, in particular, shows the path of harmonization along which the Court of Justice has been moving and
the effects that its decisions have had on both the Italian and the other European countries legislation. The paper ends up
suggesting, in accordance with the most recent ECJ case law, a so-called «virtuous golden share», to be justified in light of
the necessity of special powers as essential tools to ensure the so called “public mission”. Therefore, it is the EC
competition law which has to be subjected to the law of “public services”, and not vice versa.