OBSTRUCTIONIST NATIONAL PROTECTIONISM IN THE EU:QUALITATIVE ANALYSIS OF MEMBER STATES’ COMPLIANCE WITH THE CJEU’s JUDGMENTS IN ‘GOLDEN SHARE’ CASES

The European Union (EU) is a voluntary organisation based on the Treaties which have been democratically approved by the Member States (MSs). The MSs have willingly committed themselves to progressive integration by eliminating barriers to fundamental freedoms in order to build an ‘ever closer union among the peoples of Europe’. However, in order to address other strong conflicting interests and commitments at the national level, the governments of the MSs have raised barriers to fundamental freedoms called Golden Shares (GSs). Due to conflicts of supranational and national interests, the MSs have resisted removing GSs, so the matter has been brought to the highest legal authority of the EU – the Court of Justice of the European Union (CJEU). The CJEU has assessed the compatibility of GSs with EU law on a total of sixteen occasions, which has resulted in fifteen condemning judgments. Following the Court’s ruling, the MSs are obliged to comply, as non-compliance with a judgment is a serious infringement which signifies that the MSs are crossing the red line by severely disregarding the limits of their discretion under their voluntarily supranational commitments. Despite the significant compliance obligations and the growing GS case-law, little is known about whether the EU enforcement system succeeds in ensuring timely and effective compliance with GS-related judgments. This study seeks to close this gap. It evaluates national post-judgment compliance procedures in order to demonstrate how and under what conditions MSs comply and whether a decision to keep GSs post-judgment could be seen as an unsuitable compliance strategy leading to non-compliance. This study is a fact-finding mission aimed at solving the empirical puzzle about whether the MSs deliberately resort to post-judgment actions and strategies aimed at limiting or containing the effects of the GS rulings. It seeks to reveal whether such a compliance strategy is in line with supranational obligations or whether it could trigger obstructionist protectionism