Analysis of the derivative action mechanism and its application in the European Union legal system

Abstract

The primary objective of this paper is the scientific research and critical analysis of the derivative action as a specific procedural legal instrument for protecting the pecuniary interests of companies with state-owned capital. The study seeks to determine how this mechanism, which inherently derogates fundamental corporate principles of majority rule, can function as an effective tool for safeguarding public resources against the misconduct of management bodies. The significance of the study arises from the normative imprecision of the domestic regulatory framework and the marginal application of derivative actions in the practice of the Republic of Serbia, despite its significant potential to curb corporate corruption and enhance transparency in state asset management. The methodological framework is based on a multidisciplinary approach. A legal-dogmatic method was applied to analyze relevant regulations, alongside a comparative-legal approach covering the models of Germany, England, and Serbia. Through content analysis of relevant case law and EU directives, modern trends in minority shareholder protection were explored. Additionally, a teleological method was employed to determine the social purpose of the institute within the context of public property protection, while the method of analysis and synthesis deconstructed the complex procedural-legal relationships among the company, management, and minority members, enabling the formulation of coherent legislative proposals. Findings indicate that the key barriers to the effective application of derivative actions in Serbia include high litigation costs, information asymmetry, and the risk of abuse of procedural powers. A comparative analysis of European Union models confirms that high-functioning systems implement mechanisms for preliminary judicial review of admissibility and precisely regulated cost allocation, establishing a balance between preventing corporate obstruction and ensuring effective judicial protection for bona fide members. In conclusion, this research provides specific normative proposals for reforming domestic legislation in alignment with European standards, aiming to strengthen corporate accountability within the public sector.