Privatized Companies, Golden Shares and Property Ownership in the Euro Crisis Era: A Discussion after Commission v. Greece

In Commission v. Greece, the Court of Justice of the European Union examined Article 345 TFEU (ex Article 295 EC) on property ownership, in the context of golden shares of privatized companies. The neutrality of the EU towards privatizations is questioned. The scope and the outer limits of Article 345 TFEU are also scrutinized and a few distinctions are drawn. The decision whether to privatize and to introduce golden shares falls within the scope of Article 345 TFEU and outside the scope of fundamental freedoms, but the materialization of this decision and, as a matter of fact, the privatization process fall within the scope of fundamental freedoms. Recent developments on privatization prohibitions will also be discussed. This analysis will take place in the context of privatizations occurring in over-indebted Member States affected by the Eurozone crisis and having concluded bailout agreements. Emphasis will be placed on the Greek and Cyprus bailout agreements, where privatizations constitute an important part of the Economic Adjustment Programmes of these two Member States. Analysis of Article 345 TFEU will also cover corporatizations as an essential prerequisite for privatizations. The delineation of the boundaries between Article 345 TFEU and the fundamental freedoms constitutes a challenge for the bailout agreements and the privatization laws of over-indebted Member States.