The Compatibility of the Polish State’s Golden Shares with EC Law

Abstract

The paper deals with the issue of the compatibility of the Act on Special Powers of the Treasury and Their Exercise in Companies of Special Importance for Public Order or Public Security with the freedom of capital movements in the context of ECJ jurisprudence. The first part of the paper analyses the concept of the freedom of capital movements, as well as the concept of the golden share as a restriction on this freedom, on the basis of individual ECJ judgments. The next part covers legal solutions adopted in the Polish Act, namely its subjective scope, the rights of the Minister of Treasury in companies in which the State Treasury is entitled to a golden share, the nature of these rights, and the institution of Treasury observers. The final part of the paper examines the compatibility of the golden shares model adopted by the Polish legislator with ECJ jurisprudence. In particular, the authors seek to predict what the ECJ would hold if the European Commission were to bring an infringement case against Poland. This analysis deals with the following issues: the Polish Act as a restriction on the freedom of capital movements, the possible justifications of this restriction and the proportionality of the golden shares model adopted by Poland. As their final conclusion, the authors express the view that the Polish provisions governing the State Treasury’s golden shares in principle conform with the ECJ’s guidelines, although some features of the Polish golden share system can be questioned.