The ECJ, Volkswagen and European Corporate Law: Reshaping the European Varieties of Capitalism
By Peer Zumbansen & Daniel Saam
On its website "The EU Single Market – Fewer barriers, more opportunities", the European Commission lists the judgments by the European Court of Justice [ECJ] dealing with the free movement of capital under Art 56 EC Treaty (ex 73b). The latest update of this list is the Court's Volkswagen decision of 23 October 2007 (Case C-112/2005), which the Commission had launched against the Federal Republic of Germany on 4 March 2005. This suit, brought under Art. 226 EC Treaty, had been long coming. That the Volkswagen statute, which effectively gave the Federal government and the Land (federal state) of Niedersachsen (Lower Saxony) a veto against majority acquisition while only holding a fifth of all shares, would come into the Commission's purview, could hardly surprise, given the Commission's activity with regard to such ‘golden share' provisions under Portuguese, French, Belgian and English company laws. The most recent decision of the ECJ in the case of Volkswagen is of interest in more than one respect. Not only does it constitute a continuation and further accentuation of a line of argument that the Court has been unfolding over past few years with regard to the Member State provisions in conflict with the EC's guarantee of the free movement of capital as laid down in Art. 56 EC. The particular mentioning of the importance of the free movement of capital in Art. 14 para.2 EC for the realization of the internal market further underlines the place of this guarantee within the larger political and economic framework. After a longer period of relative marginalization in the struggle over positive vs. negative integration, the increasing globalization of capital markets in the last decade of the 20th century has moved the regulatory framework of capital to the forefront of national and supranational policy makers. The extensive case law by the ECJ, which the Commission lists...