The Alleged Case of Golden Shares in Montenegro: A Candidate Country’s Experience as an Incentive for Including Acta Jure Gestionis within the Range of Restrictions on Free Movement of Capital

Abstract

The aim of this article is to demonstrate the potential of certain acta jure gestionis to restrict the free movement of capital by way of establishing so-called “golden shares” (i.e., special rights). To that end, a Montenegrin case study is used, since it displays that a privatization contract and the subsequent shareholder’s agreement – typically jure gestionis acts – may be utilized to perpetuate a state’s influence over a privatized company in a manner equally efficient as that of certain jure imperii acts, which were found by the cjeu to represent impermissible restrictions on the free movement of capital. Finally, in view of the Montenegrin case study and the examined case law, arguments are offered and the conclusion is made that the cjeu should essentially adopt the same approach with regard to each of the two types of legal instruments utilized by states to secure their influence over privatized companies.