On the Content and Scope of National and European Solidarity Under Free Movement Rules: The Case of Golden Shares and Sovereign Investments

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Table of Contents: I. Introduction. – I.1. Structure and aims of the analysis. – I.2. Public services, strategic industries and socio-economic protectionism: solidarity within the EU and the scope of free movement rules vis-à-vis EU and non-EU investors. – II. Intra-EU investments and golden shares. – II.1. Public services, social regulation and European solidarity. – II.2. Golden shares, hybrid forms of socio-economic protectionism and freedom of movement: European market-oriented solidarity and economic regulation vs. national welfare-oriented solidarity and social regulation. – II.3. General (economic?) interest and the internal market: the scope of free movement justifications and the role of Art. 106, para. 2, TFEU within a “social market economy”. – III. Non-EU investments, sovereign wealth funds (SWFs) and State owned enterprises (SOEs). – III.1. The capital/establishment dichotomy and the access of non-EU sovereign investors to the European internal market. – III.2. Domestic and EU responses for the restriction of non-EU sovereign investments and the possible convergence of national and European solidarity. – IV. Conclusion.

Abstract: At the core of my article lies the tension between the EU’s aims of market integration and the retention by national authorities of important powers in the carrying out of socio-economic activities. In this respect I have examined the concept of socio-economic protectionism under free movement rules in the context of the relationships between intra-EU golden shares, non-EU sovereign investments, SGEIs and strategic industries. To this end, I have argued that the multifaceted notion of solidarity, at national and EU levels, may serve for reaching a fair balance between the aims of economic/market regulation and those of social regulation.

Keywords: solidarity – golden share – sovereign investment – sovereign wealth fund – state owned enterprise – free movement rules.

European Papers, Vol. 1, 2016, No 3, pp. 823-845
2499-8249 - doi: 10.15166/2499-8249/107

* Senior Lecturer/Associate Professor of EU Law, LUISS University, Law Department, Rome, Italy; Adjunct Professor of EU Law, American University College of Law, Washington, DC, dgallo@luiss.it.



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