황금주에 대한 비교법적 검토

Abstract

Golden share means tool which includes various special rights to protect national strategic profits and to govern privatized companies for State or public entities. From this point of view, a golden share is not a specific type of shares but different types set to achieve goals mentioned above. Sentences of golden shares by the European Court may be summarized as follows. The EU Court(EuGH) considers infringement of capital transaction as noticeable grounds. Belgian Government has not handled such infringement and the British Government also indirectly accepts it as a lawsuit assistant. The important thing is that the Belgium golden share only stipulated the right to object and did not provide its original discretion. Therefore, the EU court considered that it guarantees other employees to judge companies freely. EuGH also suggested three other advantageous situations for the Belgian Government: the exertion of right to object(Widerspruchsrecht) is applicable within a certain period(Golden Share III, Rdnr. 49), the competent Minister must present basis in writing(Golden Share III, Rdnr. 51) and judicial judgement on relevant dispositions is open to the court(Golden Share III, Rdnr. 51). In other words, a country only can differ the right to object. It has to be limited to individual actions and bound(Zweckbindung) to the object in terms of the requirements(zwingende Erfordernis). In respect of the maintenance purposes, written basis of nation's determination can be judged by the court and if valid legal protection were assured by arbitrary decisions, golden share is not against the first clause of Article 63(valid until November 30, 2009: the first clause of Article 56 of Treaty on the European Union(EGV)) of the Treaty on the Functioning of the European Union.