Golden share

from Wikipedia, the free encyclopedia

Holders of golden shares ( english golden shares ) have in a company over rights on which transcend the other shareholders far. Normally, those powers - most of which were created when large state-owned companies were privatized - belong to the public sector. The member states of the European Community were particularly active in introducing the system in the 1980s. Germany, which has renounced the widespread introduction as part of the wave of privatization, has a special role. Here, golden shares are not used in company law (but see the exception VW law ).

In view of the different types of gold shares , the name is less a legal term than a catchphrase.

Content design

In terms of content, the term golden share can be divided into various sub-areas. In the classic case, the special rights are linked to a single company share highlighted in accordance with the articles of association ( golden share in the narrower sense ). However, this construction is not mandatory. In many cases, the prominent position of the beneficiary of special rights is based on a sovereign (statutory) regulation without the owner (public sector) having to own company shares. In the second variant (examples are the Italian utilities ENI and ENEL ), however, the term golden shares is used ( golden shares in the broader sense ).

In addition, there is the creation of a priority position in favor of individual shareholders through rebalancing of voting rights (maximum and multiple voting rights) - here, too, a legal effect comparable to the golden shares in the broader sense is possible. Multiple voting rights and maximum voting rights are due to their legal effect (individual shareholders are preferred over the majority) to be included in the golden shares in the broader sense, but they do not have the typical characteristics (linking of special rights to a single share).

Important examples of “golden” special powers are consent, objection and veto rights in fundamental business decisions (especially amendments to the articles of association), e. B. Conversion or relocation, as well as when new shareholders join. The right to appoint board members outside of the regular election process is also a “golden” special right.

Situation in Germany and Europe

The multiple and maximum voting rights customary in Germany have been inadmissible for listed companies since 1998. The principle here is: "One share, one vote". The best-known exception is the VW Act of 1960: According to this, no Volkswagen shareholder can exercise more than 20 percent of the voting rights, even if he owns more shares. In addition, proxy voting in general meetings is limited and the state of Lower Saxony can appoint a certain number of supervisory boards outside of the regular election process. The VW law gives the country, as the fourth largest shareholder in the automotive group (11.8%), a disproportionate influence on corporate policy. The largest single shareholder, Porsche Automobil Holding SE ( Zuffenhausen ), has strongly criticized this state primacy in recent years.

In Europe, for example, France owns golden shares in the energy company Électricité de France . In Sweden, the holding company Investor AB, which is controlled by the Wallenberg family , holds these special shares in, among others, the telecommunications equipment manufacturer Ericsson . Golden shares are also in use in the Central and Eastern European accession states , but the pressure from the European Union is beginning to have an effect: In 2006, the EU Commission initiated infringement proceedings against Hungary. April 2007 has changed. Another procedure concerns special state rights at Portugal Telecom (see Commission press release IP / 06/440 of 4 April 2006).

With regard to the European wave of mergers and acquisitions, the heads of European telecommunications companies in particular have been grappling with gold shares in recent years . Because of them, the merger of the Dutch telephone company KPN with the Spanish competitor Telefónica failed in May 2000 . Madrid had made its approval dependent on the Dutch state withdrawing from KPN - in which it also held a special share.

Telecom boss Ron Sommer also had to repeatedly advertise to the Italian government in 2003 to join Telecom Italia , which the rulers in Rome were uncomfortable with because of the high federal stake in the Bonn group. The fact that Sommer's project then failed was due to the Olivetti group, which had the better cards in the takeover battle with the Germans.

The judgments of the ECJ

The European Court of Justice (ECJ) has ruled in several rulings since 2002 that state “golden shares” have interfered with the capital movement (Art. 63 TFEU, ex-Art. 56 EC) and freedom of establishment (Art. 49 TFEU, ex-Art EG) viewed. According to the Court of Justice, the special rights restrict those fundamental freedoms, since they either make the acquisition of shares dependent on state participation (“direct acquisition restriction”) or they make participation in the company subject to state influence (“indirect acquisition restriction”). In both cases, in the view of the ECJ, the attractiveness of the acquisition of shares for investors can decrease, which, according to the case law of the Court of Justice, has a restrictive effect (see Dassonville decision ). State interventions of this kind are only permitted if they are justified by concerns of the general welfare or requirements of public safety and order - both of these are particularly possible in the case of energy supply, telecommunications, defense or infrastructure companies (e.g. airport operators). Here too, however, the principle of proportionality must be observed, i.e. H. the special rights must not go beyond what is absolutely necessary to achieve the goal. Attention must also be paid to a transparent design and effective legal protection. The judgments issued so far have concerned France, Portugal , Spain, Great Britain and Italy, all of which have failed to meet the above requirements. Only the special rights of the Kingdom of Belgium with electricity and gas suppliers were compatible with the EC Treaty .

The proceedings against the Federal Republic of Germany were concluded with a judgment of October 23, 2007 (case C-112/05). Advocate General Dámaso Ruiz-Jarabo Colomer had already suggested to the court in his Opinion of February 13, 2007 that the VW Act be assessed as an interference with the free movement of capital and that the Federal Republic of Germany be condemned for this breach of contract. The court followed these requests and granted the EU Commission's action - which concerned a violation of Article 56 EC (free movement of capital). A violation of the freedom of establishment (Art 49 TFEU, ex-Art. 43 EC), however, was not found.

Most recently, the ECJ ruled on December 3, 2007 (case: “Federconsumatori u. A.”) That the right reserved for public institutions to exercise disproportionate control in an AG compared to their participation violates Community law.

Relevant decisions of the ECJ:

  • ECJ , judgment of June 04, 2002 (case C-367/98) - Goldene Aktien Portugal -, Coll. 2002, p. I-4731
  • ECJ , judgment of June 04, 2002 (case C-483/99) - Goldene Aktien Frankreich -, Coll. 2002, p. I-4781
  • ECJ , judgment of June 04, 2002 (case C-503/99) - Goldene Aktien Belgium -, Coll. 2002, p. I-4809
  • ECJ , judgment of May 13, 2003 (case C-463/00) - Goldene Aktien Spanien -, Coll. 2003, p. I-4581
  • ECJ , judgment of May 13, 2003 (Case C-98/01) - Goldene Aktien Great Britain -, Coll. 2003, p. I-4641
  • ECJ , judgment of June 02, 2005 (case C-174/04) - Goldene Aktien Italien -, Slg. 2005, p. I-4933
  • ECJ , judgment of September 28, 2006 (case C-282/04, C-283/04) - Goldene Aktien Netherlands -, ECR 2006, p. I-9141
  • ECJ , judgment of October 23, 2007 (Case C-112/05) - Volkswagen Law -, Coll. 2007, p. I-8995
  • ECJ , judgment of 0December 3, 2007 (case C-463/04, C-464/04) - Federconsumatori u. a. -, Coll. 2007, p. I-10419
  • ECJ , judgment of July 08, 2010 (case C-171/08) - Goldene Aktien Portugal II -, Slg. 2010, p. I-06817
  • ECJ , judgment of November 11, 2010 (case C-543/08) - Goldene Aktien Portugal III -, Coll. 2010, p. I-11241
  • ECJ , judgment of 10 November 2011 (Case C-212/09) - Goldene Aktien Portugal IV
  • ECJ , judgment of 0November 8, 2012 (Case C-244/11) - Golden Shares Greece

literature

  • Johannes Adolff: Turn of the Tide ?: The “Golden Share” Judgments of the European Court of Justice and the Liberalization of the European Capital Markets . In: German Law Journal . tape 3 , no. 8 , 2002, doi : 10.1017 / S2071832200015273 .
  • Armbrüster , "Golden Shares" and the fundamental freedoms of the EC Treaty, JuS 2003, p. 224 ff.
  • Grundmann / Möslein , The Golden Shares Basic Decisions of the European Court of Justice, BKR 2002, p. 758 ff.
  • Grundmann / Möslein , The Golden Share, ZGR 2003, p. 317 ff.
  • Karpf , The (in) admissibility of “Golden Shares” under EU law, ZFR 2007/8, 145
  • Pießkalla , Goldene Aktien from an EC-legal point of view, dissertation 2006
  • Pießkalla , comment on ECJ, judgment of September 28, 2006 (verb. Case C-282/04 and 283/04 - “Golden shares Netherlands”), in: EuZW 2006, p. 724 f.
  • Pießkalla , comment on ECJ, judgment of October 23, 2007 (case C-112/05) - VW Law, European Journal for Business Law (EuZW) 2007, pp. 701–703.
  • Ruge , Goldene Aktien und EG-Recht, EuZW 2002, p. 421 ff.
  • Sander , Volkswagen before the ECJ - The area of ​​protection of the free movement of capital at the crossroads, European Journal for Business Law (EuZW) 2005, pp. 106-109.
  • Sander , Maximum Voting Rights and Free Movement of Capital according to the VW Law Decision - Does the ECJ psychologize the scope of protection of Art. 56 EC? ', European Journal for Business Law (EuZW) 2008, p. 33.
  • Sander , Case C-112/05, European Commission v. Federal Republic of Germany: The Volkswagen Case and Art. 56 EC - A Proper Result, Yet Also a Missed Opportunity ?, 14 Columbia Journal of European Law (2008), 359-370.
  • Spindler , German company law caught between Inspire Art and Golden Shares ?, RIW 2003, p. 850 ff.
  • Wolff , Foreign State Funds and State Special Rights: On the phenomenon of "Sovereign Wealth Funds" and the compatibility of the restriction of company investments with European law (esp. P. 103 ff.), Diss., Berliner Wissenschaftsverlag, Berlin 2009, ISBN 3-8305-1688- 6 .
  • Peer Zumbansen, Daniel Saam: The ECJ, Volkswagen and European Corporate Law: Reshaping the European Varieties of Capitalism . In: German Law Journal . tape 8 , no. 11 , November 1, 2007, doi : 10.1017 / S2071832200006167 (English).

Individual evidence

  1. ↑ Shareholder structure. December 31, 2017, accessed August 19, 2018 .