Shareholders between the market and the state: the VW law and other interventions in the market economy

Almost exactly a decade ago, the Court of Justice delivered its first judgments on golden shares granting Member States special rights in privatized companies. Since then, the Court has dealt with the problem of golden shares at regular intervals. However, in spite of the growing body of case law, clear principles to determine when special rights of public shareholders constitute a restriction on the free movement of capital have not yet emerged. The case law of the Court of Justice develops on an ad hoc basis, and the Court seems to be guided by a general conviction that State involvement in private enterprises should be confined, rather than by discernible legal principles. This article seeks to rationalize the golden shares case law and assess the delimiting criteria proposed by the Court. In order to examine the case law in a structured way, the article draws a distinction between two types of State intervention in the control of companies: "regulatory acts" and "shareholder acts".