The legal framework of services of general economic interest in the ...

The internal activities of monitoring and regulation are coordinated, at European level, by
the networks linking the national authorities in charge of them and the European Commission,
which has the task of promoting the uniform and consistent application of European law and
advising the European institutions 22 . In this regard, one can identify some common features
between “European committees or groups” that play a role of connection in the field of services of
general economic interest, such as ERG for telecommunications 23 and ERGEG for electricity and
gas 24 . Their purpose is to promote cooperation and coordination between national regulatory
authorities in order to contribute to the development of the internal market and to a level playing
field. This kind of cooperation – essentially horizontal – is taking place through acts of soft law that
rarely become legal binding acts 25 . These committees also play an advising role for the European
Commission which has the responsibility of their vertical coordination and the power to make
binding decisions in this topic.
Nevertheless, privatization does not imply deregulation. Its output is a new and profound readjustment
on assumptions that differs from the previous regulations.
Under this approach, one must estimate the relationship between the process of privatization
and competition policies. As a matter of fact, it is necessary to rearrange the monopoly sectors
concerned, removing entry barriers for new competitors and taking into account the undergoing
financial and technology changes at European level 26 .
Liberalization of services of general economic interest and privatization of public enterprises
providing them are taking place contemporary in order to maintain the proper functioning of
competitive mechanisms. The safeguard of the public interest can be guaranteed through the
provision of instruments for Member States to control the privatized enterprises. The most relevant
among these ones are golden shares 27 . They are nominal shares, held by governments, that give the
right of decisive vote in a shareholders-meeting and in specified circumstances. Usually they are
implemented through clauses in the company’s articles of association, and they are designed to
prevent stake building above a certain percentage ownership level, or to give a veto powers over
any major corporate action, such as the sale of a major asset or subsidiary or of the company as a
whole.
Finally, on the one hand, through independent authorities, Member States become the
regulators of the liberalized market, according to the instructions and the requirements defined by
European law. On the other hand, they continue to play an active role in the dynamics of the same
22 BAVASCO, A.F. (2004) “Electronic communication: a new paradigm for European Regulation”, Common Market Law
Review, 41: 87-118.
23 Commission Decision 2002/627/EC of 29 July 2002 establishing the European Regulators Group for Electronic
Communications Networks and Services (O.J. 2002 L 200/38/40).
24 Commission Decision 2003/796/EC of 11 November 2003 on establishing the European Regulators Group for
Electricity and Gas (O.J. 2003 L 296/34–35).
25 SCUTO, F. (2007) “La governance nel settore dell’energia e gas attraverso la rete europea delle autorità indipendenti”,
Rivista Italiana Diritto Pubblico Comunitario, 267-302.
26 SNELL, J. (2010) “The Notion of Market Access: A Concept or a Slogan”, Common Market Law Review, 47: 437-
472.
27 ARTES, A. (2009) “Advancing harmonization: should the ECJ apply golden shares’ standards to national company
law”, European Business Law Review, 20: 457-482; BALLARINO, T. AND BELLODI, L. (2004) “Le “golden shares” nel
diritto comunitario. A proposito delle recenti sentenze della Corte comunitaria”, Rivista delle Società, 2-42; van
Bekkum, J. (2010) “Golden Shares: A New Approach”, European Company Law, 7: 13-19; GIPPINI FOURNIER, E. AND
RODRIGUEZ MIGUEZ, J.-A. (2003) ‟Actions spécifiques dans les sociétés privatisées: le beurre ou l’argent du beurre”,
Revue Droit Union Européenne, 39-86; GOLDSCHMIDT, P.N. (2007) “Editorial – Golden shares”, Cahiers Droit
Européen, 293-298; HOUYET, Y. (2007) ‟Les exigences du droit primaire concernant l’abolition des droit exclusifs ou
spéciaux accordés aux entreprises assument des services publics”, Revue Trimestrielle Droit Européen, 253-276;
OECD, (2008) ‟Proportionality of Security-Related Investment Instruments: a Survey of Practices”, from
http://www.oecd.org/daf/investment/statistic.
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