La “golden share” nella giurisprudenza comunitaria: criticità e contraddizioni di una roccaforte inespugnabile

In its ruling of March 26, 2009 (Case C- 326/07), the Italian rules on “golden share”, originally contained in Decree-Law of 31 May 1994, n. 332, ratified with amendments by Law 30 July 1994, n. 474, was declared by the Court contrary to the provisions of the EC Treaty, as deemed to restrict the free movement of capital (art .56) and freedom of establishment (art. 43). Despite the apparent corporate nature, the Court has reduced the special powers granted to the state in privatized companies among the means of limiting or discouraging direct investment and thus the free movement of capital. It has thus laid down the fundamental incompatibility with the rules of the Treaty, once again by applying these principles in relation to the limitations of direct access to secure areas. Having traced the most significant passages that emerges from the conceptual cited above, the author attempts a reinterpretation of this reform varied set of rules, exceptions to those general corporate law ordinarily applicable, highlighting how both however, formed a large European Court of Justice in subjecta materia. The intent is to emphasize that the intervention of the Court, both with regard to the Italian case as principal with regard to other legal systems of Member States, seems to focus mainly on formal aspects rather than on structural situations, focusing on the effects rather than the causes and which does not examine the degree of development of privatization, or even the fact of their launch. After noting the excessive schematic of the rulings of the Court, it is suggested, therefore, not sought in anticipation of the golden share a case of incompatibility end in itself, but to explore case-by-case the anomaly of its exercise. In conclusion, following an attempt to redraw the boundaries of “virtuous golden share”, the attention then focuses on the identification of some plant regulatory reform proposals, with the dual aim of denationalization of the attitude of the internal market Italian and mitigate the extent of the institution of “golden share”, considered somewhat “deviant” from general law.