Turn of the Tide?: The “Golden Share” Judgements of the European Court of Justice and the Liberalization of the European Capital Markets

Abstract

There is hardly a set of legal institutions that has more contributed to the creation of the common market than the fundamental freedoms enshrined in the Treaty of Rome. The expanding concepts of freedom of establishment and of free movement of goods, persons, services and capital have, during the thirty years since the European Court of Justice\'s (ECJ) decision in \”Dassonville\”, by far become the Community\'s most effective deregulatory instruments. The driving force behind this development has been the case law of the Court. This case law has, on an initially slim basis in the Treaty, established the fundamental freedoms as the central element of a \“new legal order\” which has direct effect, results in the automatic inapplicability of incompatible national law and which can be invoked by every citizen in national administrative or judicial proceedings. Furthermore, it is enforced not only by Community institutions but also by EU-citizens acting as \“private public attorneys\” when bringing claims under European law against Member States for damages resulting from violations of the Treaty.