Zbornik, Vol. 33 No. 2, 2012.
Stručni rad
MAY PARTICULAR PROVISIONS OF EU LAW ON EQUAL TREATMENT OF SHAREHOLDERS AND PROTECTION OF MINORITY SHAREHOLDERS BE INFERRED FROM A GENERAL PRINCIPLE OF LAW? – CASE AUDIOLUX
Tea Hasić
; Sveučilište u Puli, Odjel za ekonomiju i turizam
Sažetak
This paper analyses the judgement of the European Court of Justice (hereinafter: the ECJ) in the case Audiolux C-101/08. In the preliminary ruling procedure the ECJ had to decide whether EU law includes any general principle of law from which certain provisions of secondary EU law on equal treatment of shareholders and protection of minority shareholders (such as the mandatory bid rule) can be inferred. The ECJ ruled that EU law does not include any such general principle. The author does not dispute the validity of the Court’s decision as to its merits, but outlines the threat inherent in the Court’s efforts to determine a general principle of EU law. In such a scenario the Court may infringe legislative powers which are conferred to the EU Parliament and the Council by the Treaty on European Union. In this regard, it should be noted that the ECJ is not entitled to establish any new general principle of law. Instead, it may only establish that there are already certain unwritten principles in EU law. Consequently, should the ECJ create an unwritten rule where there is none, it would generate a new legal norm and thereby confer upon itself legislative powers. This would unevitably breach the „institutional balance rule” implied under the Treaty. Therefore, the author argues that the risk of this occurring will be reduced if the discretionary ruling on a case-by-case basis would be replaced by the ruling in accordance with predefined rules. The ECJ would thus have to examine in each case whether a general principle of law already exists in EU law or not.
Ključne riječi
general principles of EU law; equal treatment of shareholders; protection of minority shareholders; ECJ and “institutional balance rule”
Hrčak ID:
107295
URI
Datum izdavanja:
20.12.2012.
Posjeta: 1.531 *