Schrödinger’s Investment: the EU’s General Court Considers that the Compensation Ordered by the Micula Tribunal is Not a Form of State Aid (Although it Might as Well Have Been)

Alexandros Catalin Bakos, LL.M. Candidate, Utrecht University

In a somewhat fortunate turn of events for the stability (or what is left of it in any case) of the intra-European Union (intra-EU) investment treaty system, the General Court of the European Union (GCEU) has annulled the EU Commission’s decision rendered against Romania for illegal state aid concerning the enforcement of the Micula arbitral award. Although the GCEU’s decision may be good news for the investors themselves, it does nothing to allay fears regarding the future of intra-EU ISDS. In the grand scheme of things, the effects which culminated with the Achmea judgement are still there.

This latest installment in the long-running saga of intra-EU investment treaties and their conflict with the EU legal order does not substantially change the paradigm. In fact, one may argue that it complicates the matters: the only certain conclusion that can be derived from the General Court’s decision is the fact that there can be no conflict between EU State Aid rules and intra-EU Bilateral Investment Treaties (BITs)/awards based on such treaties if the compensation ordered by the tribunal relates to measures which were taken prior to the entry into force of EU law. However, the Court did not analyze what is the situation of compensation which needs to be paid for measures adopted after the entry into force of EU law.

In any case, before continuing with the decision’s analysis, a short recap of the major developments in this situation is in order.

How did we get here? 

Prior to joining the EU, the Romanian state offered the Micula brothers and the companies controlled by them (the investors) certain custom duty exemptions and other tax breaks (the GCEU’s decision, paras. 5-6). Later, in 2004 and 2005, those exemptions and breaks were suddenly repealed, in an effort to ensure compliance with the EU laws on State Aid – which would become effective from 1 January 2007 (the GCEU’s decision, para 12). Because of this, the investors began ICSID arbitration proceedings, challenging the compliance of the measure with the applicable BIT (the 2002 Sweden-Romania BIT). The arbitral tribunal found in the investors’ favour and ordered Romania to pay compensation amounting to approximately €178 million. The court’s finding was based on a violation of the fair and equitable treatment standard. More specifically, on behaviour contrary to the legitimate expectations of the investors. This is of utmost importance, as what was considered to be in breach of the treaty was not the repealing of the exemptions itself, but the manner in which this occurred. The arbitral tribunal expressly found that ‘by repealing the […] incentives prior to 1 April 2009, Romania did not act unreasonably or in bad faith […] [H]owever […] Romania violated the Claimants’ legitimate expectations that those incentives would be available, in substantially the same form, until 1 April 2009. Romania also failed to act transparently by failing to inform the Claimants in a timely manner that the regime would be terminated prior to its stated date of expiration. As a result, the Tribunal finds that Romania failed to “ensure fair and equitable treatment of the investments” of the Claimants in the meaning of Article 2(3) of the BIT’ (para. 872 of the award).

Subsequently, the investors sought the enforcement of the award. However, this proved difficult because the EU Commission intervened and tried to prevent Romania from enforcing the award. The former argued that an enforcement would constitute a form of illegal state aid. After Romania, nonetheless, partially paid the award, the EU Commission officially adopted a decision against the Romanian state for breach of State Aid rules. The Commission’s argument was that this payment would, in essence, favour the investors in the same way in which the exemptions favoured them in the first place. Romania, thus, was under an obligation to stop paying the award and to recover the amount which had been paid so far. This was eventually challenged by the investors before the GCEU and the judgement analyzed here is the European Court’s decision regarding that challenge.

This turn of events determined other courts where enforcement of the award was sought to stay the proceedings until the European Court will have rendered an award concerning the challenge to the EU Commission’s decision on illegal state aid (see here for an example).

What does the GCEU’s decision entail and what does it not entail?

The GCEU found that the compensation rendered by the Micula arbitral award could not be considered illegal state aid, at least as it regards events which took place before Romania’s accession to the EU (para. 109 of the GCEU’s decision).

The essence of the GCEU’s arguments is based on a clear establishment of the temporal nexus to which the arbitral award referred (paras. 71-93 of the GCEU’s decision). To this end, the Court clarified that all the relevant issues (including the events which gave rise to the right to compensation) arose and produced effects before Romania’s accession to the EU (para. 71). In that respect, even if the arbitral tribunal’s award was rendered after EU law became applicable to Romania, it merely ‘retroactively produced definitively acquired effects which it merely ‘stated’ for the past, that is to say, effects which, in part, were already established before accession’ (para. 84 of the GCEU’s decision). Accordingly, even if the award was rendered after Romania’s accession to the EU, ‘the Commission retroactively applied the powers which it held under Article 108 TFEU and Regulation No 659/1999 to events predating Romania’s accession to the European Union. Therefore, the Commission could not classify the measure at issue as State aid within the meaning of Article 107(1) TFEU’ (para. 92 of the GCEU’s decision).

What is interesting, though, is that the GCEU referred only to a part of the compensation as not being under the Commission’s power of review. It did not exclude the entirety of the award from the Commission’s reach: ‘as regards the amounts granted as compensation for the period subsequent to Romania’s accession to the European Union, namely, the period from 1 January 2007 to 1 April 2009, even assuming that the payment of compensation relating to that period could be classified as incompatible aid, given that the Commission did not draw a distinction between the periods of compensation for the damage suffered by the applicants before or after accession, the Commission has, in any event, exceeded its powers in the area of State aid review’ (para. 91 of the GCEU’s decision). In other words, had the Commission distinguished between the pre-accession and the post-accession periods, the decision may not have been annulled after all (or may have been only partially annulled).

Clearly, the GCEU left open the possibility of finding an incompatibility between State Aid rules and the observance of an arbitral award rendered for acts which occurred after EU law became applicable. And this is what the decision does not entail: it does not clarify whether compensation payable on the basis of an arbitral award is contrary to EU State Aid rules.

It is true that the Court began an analysis of whether compensation offered on the basis of an arbitral award can be considered State Aid, but it stopped short of drawing any relevant conclusions. It limited itself to referring to the general conditions necessary for State Aid to arise (paras. 100-103 of the GCEU’s decision) and concluded that it cannot be considered that the compensation amounted to a form of illegal State Aid, at least not until the accession period. However, after the accession period, the analysis would advance to the issue of whether the objective elements of illegal State Aid were present: this, however, was not undertaken by the Court. It never determined whether the measure was imputable to Romania. And one can clearly see why the Court avoided this. It would be very hard to argue that the compensation ordered by the arbitral award can amount to illegal state aid.

Firstly, how can one impute an investment tribunal’s award to Romania? This would mean that Romania had control over the arbitrators, which is clearly not the case. Quite the opposite, as otherwise arbitration would not have been used so often in the settlement of investor-state disputes. Neutrality is one of the reasons ISDS exists. Additionally, for state aid to exist, one needs to demonstrate effective control of the state over the body which adopts the decision alleged to constitute such state aid (para. 52 of the Stardust case – France v. Commission, Case C-482/99). As shown earlier, this is clearly not the case with an investment arbitral tribunal.

Moreover, the GCEU mentioned that ‘compensation for damage suffered cannot be regarded as aid unless it has the effect of compensating for the withdrawal of unlawful or incompatible aid’ (para. 103 of the GCEU’s decision). This must be read together with the Court’s earlier judgment in the Asteris case. The basis of this case-law is that ‘State Aid […] is fundamentally different in its legal nature from damages which the competent national authorities may be ordered to pay individuals in compensation for the damage which they have caused to those individuals’ (para. 23 of the Asteris judgment). In this context, one must tread carefully before concluding that the subsequent compensation is, in fact, a hidden form of State Aid. Given the evident difference between the two, it is of utmost importance to demonstrate in-depth that in a specific case this difference is diluted.

One underlying premise for this difference to be able to disappear is for the EU Member State to actually be the one which formally re-institutes the illegal aid through the formal measure of compensation. The two measures – the initial state aid and, subsequently, the compensation for the withdrawal of the unlawful measure – must be seen as a whole, as having one purpose and as being able to be imputed to one entity – in this case, the Romanian state. In the Micula case, though, this was not present. The initial measure was indeed adopted by the Romanian state. The compensation, though, was decided by an objective and neutral tribunal. They are related, but they do not constitute one whole. Not to mention the fact that it can be very hard to argue that compensation on the basis of an award could offer unjustified economic advantages.

Secondly, one other condition for the compensation to be considered as re-instituting the illegal State Aid is for the compensation to be structured so as to replace the illegal measure itself. Nonetheless, this was not the case with the Micula award. One aspect must be taken into consideration in order to understand the difference between the customs and tax incentives themselves (the illegal State Aid) and the arbitral award. As mentioned at the beginning of this post, it was not the withdrawal of the incentive schemes that was considered to be the basis of compensation. What led to the present outcome was the manner in which the withdrawal took place, essentially leading to an infringement of legitimate expectations. Those are different and it is clear that, in any case, this would not be a case of re-instituting said state aid through the backdoor.

As such, the GCEU’s award is clearly not a silver lining for intra-EU ISDS, as it does not clarify – in the end – the most important aspect: can compensation rendered by an arbitral award be considered illegal state aid? In this context, when one thinks about the general scheme of things, it becomes evident that nothing has really changed: Achmea is alive (the effects have come sooner rather than later). Additionally, nobody knows its scope, especially when it comes to the Energy Charter Treaty’s (ECT) arbitration mechanism. Although arbitral practice seems to insist that Achmea does not preclude intra-EU ISDS on the basis of the ECT, what is eagerly waited is the CJEU’s position on this. After this, the CETA opinion – although reconciling ISDS with EU law when there is a third party (a party outside the EU) involved – does not mean the endorsement of intra-EU ISDS; it can clearly be seen that the EU’s position within UNCITRAL’s Working Group III is still the one we have been used to for so long: ISDS must be replaced with a standing court.


[1] LL. M. candidate in Law and Economics at Utrecht University.

The Relationship between EU State Aid law and Obligations Arising under Investment Treaties

by Alexandros Catalin Bakos, LL.M 

I. Introduction:

In recent years, a series of debates have emerged in regard to the relationship between the EU State Aid law[1], on the one hand, and obligations arising under Investment Treaties (to which the EU is not a formal party)[2], on the other hand. Those debates manifest themselves at different levels and have powerful implications: firstly, they clarify the scope of State Aid law and its relationship with one of the most important fields – that of Investment Law. Secondly, they clarify – or complicate, depending on the vantage point from which one analyses the issue – the relationship between EU law and Public International Law[3]. And, thirdly, they raise questions of interpretation of EU law, especially from a historical interpretation point of view and from a teleological point of view – this is a great tool to understand the limits of EU law (the real limits, not the attempts to politically force an interpretation which extends the limits of EU law beyond what the Member States had envisioned initially).

Needless to say, the practical importance of the relationship between State Aid law and obligations arising under ITs can hardly be overstated. One can only look at the recent Micula affair[4] and the unenviable position in which Romania finds itself: on the one hand, it is faced with severe opposition from the European Commission as regards the observing of certain obligations arising under ITs (more specifically, the obligation to pay compensation to the Micula brothers as the final award against Romania dictates). On the other hand, Romania cannot outright ignore the legal framework set by the ITs (including the binding effect of the awards within this field) and show total disregard to the interests (and even rights) of investors.

As such, I endeavour in this study to provide an analysis of this relationship between State Aid law and obligations arising under ITs. I will focus my attention only on the first tier of this issue – the relationship between State Aid law and obligations arising under ITs themselves – and, as such, I will not analyse more general issues such the relationship between General Public International Law and EU law. Moreover, I will ignore general issues of interpretation of EU law. However, those issues will be touched upon where relevant for the analysis conducted through the present study.

II. Analysis:

Before starting, it should be stated that this analysis is composed of two parts. Firstly, I will analyse the relationship between State Aid law and obligations arising under ITs signed by EU Member States (intra-EU ITs) (1). Subsequently, I will analyse what the relationship between State Aid law and obligations arising under ITs when the ITs’ signatories are both from within the EU and from outside the EU (2).

  1. The relationship between State Aid law and obligations arising under ITs signed by EU Member States (intra-EU ITs):

(a) Scope of analysis:

The problem with intra-EU ITs and State Aid law seems to be that compensation given to investors by member states, as a result of an investment tribunal award, is considered illegal state aid, in cases such as the Micula one.[5] As such, the analysis should address the following: can an investment award rendered by an investment tribunal on the basis of an intra-EU IT be considered illegal State Aid? If so, when can it be considered as such (b)? Following, the next question should be: notwithstanding specific issues of whether enforcement of an investment arbitral award can be considered illegal State Aid, is it justified to ever argue for the termination of an intra-EU IT relying on State Aid law? In other words, can the intra-EU IT, by itself, be considered as violating EU rules on State Aid (c)?

(b) Can an investment award rendered by an investment tribunal on the basis of an intra-EU IT be considered illegal state aid? If so, when can it be considered as such?

In order to address this question, the first issue which must be clarified is what exactly is considered illegal state aid[6]: under Article 107 of the Treaty on the Functioning of the European Union[7], state aid refers to any aid granted by a Member State or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods in so far as it affects trade between Member States.[8]

In other words, a number of four conditions must be met in order for a measure to be considered State aid: the State must intervene through that measure (and that measure must be imputable to the state[9]); the beneficiary of the intervention must be conferred an advantage; competition must be distorted; and the intervention must be likely to affect trade between member states.[10] As such, (when) is an investment award rendered by an arbitral tribunal on the basis of an intra-EU IT considered State Aid? In order to answer the question, a qualification of an investment award which leads to an obligation on the State to pay compensation to a wronged investor must be made (including its subsequent enforcement).[11] In simple terms, an award is a final judgement or decision, esp. one by an arbitrator or by a jury assessing damages.[12] Continuing, the enforcement of an award is the act or process of compelling compliance with a law, mandate, command, decree, or agreement.[13]

Of course, there is a question which arises, at this moment: supposing an arbitral tribunal renders an award against an EU member-state based on an intra-EU IT and the State enforces it, what is the legal basis for that? The answer can be found in the two most relied-on arbitration frameworks: the ICSID[14] Convention on the Settlement of Investment Disputes between States and Nationals of Other States[15] which provides that the award given under its framework shall be binding on the parties[16] and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards[17] which provides that each Contracting State shall recognize arbitral awards as binding and enforce them[18]. Thus, an obligation to respect and enforce arbitral awards arises for the state under Public International Law.[19]

This leads to an important question regarding State Aid law: is the condition that the measure must be imputable to the State met? The issue of imputable conduct has been defined by the CJEU as follows: this condition is met when the decisions of Member States by which, in pursuit of their own economic and social objectives, they give, by unilateral and autonomous decisions, resources to undertakings or other persons or procure for them advantages intended to encourage the attainment of the economic or social objectives sought.[20]

Can arbitral awards which are enforced as an obligation under Public International Law be considered as being unilateral and autonomous? Enforcement is, in the end, the latter part of a judicial proceeding. There is nothing autonomous or unilateral about it. And it would be artificial to separate the arbitral decision itself from the enforcement. Just because there is no central executive authority to enforce decisions rendered under Public International Law does not mean that the enforcement of those awards can be separated from the framework in which they arose: obligations owed to other legal subjects which, usually[21], have as their ultimate basis a treaty or customary relationship (a bilateral or multilateral relationship).

This view is shared by two other authors who base their approach on the fact that, when enforcing arbitral decisions, states do not act in their sovereign powers, but as agent(s) of the international community[22]. And there is undeniable merit to this view: that States, when undertaking obligations in their sovereign capacity, are giving up part of their sovereignty.[23] Moreover, even EU official bodies have constantly repeated this fact.[24] In other words, because States give up part of their sovereignty when undertaking legal obligations, they can no longer act unilaterally and autonomously within the fields and situations where they are under certain obligations.

Therefore, it can be concluded that, under EU law, as a rule, a state acting on the basis of an investor-state arbitration award, is not acting unilaterally and autonomously and, as such, the analysed measure regarding a possible issue of illegal State Aid cannot be imputable to the State – a condition for a measure to be considered State Aid.

In the following, I shall research whether there are exceptions to this rule and, as such, whether certain cases of compensating investors as a consequence of an arbitral award can be considered illegal State Aid. A practical case may offer better insights into this question.

Perhaps the most important case for the present analysis which could demonstrate whether there can exist exceptions to the rule that enforcement of arbitral awards rendered within the framework of ITs is not illegal State Aid is the Micula case. In short, this is what happened: the Micula brothers were handed, on the basis of a BIT (the Romanian – Swedish Bilateral Investment Treaty) certain custom duty exemptions. This happened before accession to the EU by Romania. Subsequently, close to the moment of accession (in 2004), Romania repealed the said exemptions, as a compliance mechanism with EU State Aid rules. On the basis of this measure, the Micula brothers challenged the measure in an arbitral tribunal under the relevant IT.

During proceedings, the EU Commission intervened as amicus curiae, effectively arguing against any reinstatement of the exemptions since that would amount to illegal State Aid. However, the arbitral tribunal ignored the Commission’s arguments and found against Romania, effectively ruling that a breach of the claimants’ legitimate expectations occurred, awarding damages.[25] As such, the claimants sought the enforcement of the arbitral decision in Romanian courts. They succeeded although the Commission had once again intervened looking to oppose the enforcement. This led the Commission to open a formal investigation into what they argued could constitute illegal State Aid. It was eventually decided by the Commission that the enforcement of the award (the payment of compensation) constituted illegal State Aid[26] and this bore upon Romania the obligation to recover the awarded compensation.[27] Moreover, the Micula brothers challenged the Commission’s decision in the CJEU, the case pending before the Court at the moment (case T-646/14).[28]

The entire Micula case complicates the matters. In order to better analyse the whole issue, two elements should be separated from the facts: on the one hand, there is the issue of the initial exemption, itself. Romania effectively considered the initial exemption to be illegal State Aid and, as a consequence, repealed it. Moreover, it seems that a formal analysis into the whole exemption leads to the same conclusion: this is an act imputable to the State, which offers the beneficiary an economic advantage, distorts competition and can affect trade between Member states. What complicates matters is that the relevant BIT, on the other hand, protects the legitimate expectations, not a specific exemption such as the custom duties exemption offered by Romania. Of course, once a specific benefit offered to the investors generated legitimate expectations, the standard of legitimate expectations set by the BIT becomes applicable and enforceable. However, there is a difference between the exemption and the obligation to guarantee legitimate expectations.

But the questions which have to be addressed now are: firstly, at the moment of the granting of the exemption, which was fairly close to the moment of Romania’s accession to the EU, were the exemptions granted by the Romanian State to be considered as having generated legitimate expectations? And secondly, what is the basis for ignoring the investment tribunal’s award, by the European Commission? I have already mentioned that I do not consider the EU Legal Regime as being totally autonomous. Thus, it is not separated from the framework of general Public International Law. It is just a system which, from a Public International Law point of view, is in (apparent) conflict with another system: that of Foreign Investment Law. Thus, which is to be considered as having primacy and why?

I will now address the first question: I argue that legitimate expectations indeed existed. I base my claim on two elements: firstly, the arbitral tribunal’s decision to award compensation to the Micula brothers, as a result of the repealing of the custom duties incentive scheme[29]. Secondly, it has been found in case-law regarding Foreign Investment that if a benefit awarded by a State to an investor was presented, by representations made to the investor, as having been in compliance with the legal requirements of the host state, the investment must be awarded the expected degree of protection (by respecting the awarded benefits on which the investor relied), even if, in reality it conflicts with the host state’s law.[30] It is true that in the previously-mentioned case the claimant relied on the principle of estoppel[31], which is a specific application of the legitimate expectations doctrine[32], but the principles applied in the Kardassopoulos v. Georgia case clarify the issue for the Micula case, as well.

Thus, it is not for the investor to bear the risk of an investment which is non-compliant with the legal rules of the host state, when the host state created the expectation of conformity. And this is what happened in the Micula case, because the investment had been protected for a few years, before the repealing of the incentive scheme, creating the proper expectations of legitimacy and legality. Therefore, legitimate expectations existed and were violated by Romania through its repealing act.

Subsequently, there is the issue of analysing the (apparent) conflict between obligations arising under BITs and ones arising under EU law. As mentioned earlier, those are two conflicting legal systems with no apparent hierarchy between them (neither the obligations under foreign investment law nor the ones under EU State Aid law can be considered jus cogens – norms of a peremptory character under International Law, from which no derogation is admitted; in other words, norms of a superior value). Therefore, because those norms are considered to be of equal value, the (apparent) conflict must be settled by relying on the principle of lex posterior derogat (legi) priori.[33]

Under this framework, it can be argued that the subsequent legal regime implemented by the EU State Aid legal regime would derogate from schemes of custom duties exemption such as the one presented earlier. Such exemptions constitute State Aid and since both Romania and Sweden are part of the EU Legal Regime, it can be considered that they have derogated from the possibility to implement such State Aid. As such, if there had been an obligation under the ITs to grant such an economic advantage to the investors, there could have been a real conflict between the ITs and the EU State Aid rules.

However, there did not exist any such obligation. And this is why I mentioned earlier that there was just an apparent conflict between those two international legal regimes – the EU legal regime and the Foreign Investment legal regime – and not a real one. The obligations under ITs are not conflicting with the EU State Aid Rules. What is conflicting is the effective benefit given by the Romanian State to the Micula brothers. While this is inherently linked to the IT, it is not identified with it. This may be a nuance, but it is an important one. It demonstrates that, at least as to the relationship between obligations arising under intra-EU ITs and EU State Aid rules there is no formal conflict.

Thus, this custom duties exemption is a different thing to the protection of legitimate expectations – the ones which are actually protected by the Romanian – Swedish BIT –, expectations which had been created before the EU laws prohibiting State Aid became effective. The legitimate expectations, as mentioned earlier, must be protected, even more so when the investors acted in good faith by relying on the representations of the Romanian officials.

Moreover, it has been proved that payment of compensation as a result of an investment tribunal’s award is not a form of State Aid, because it is neither unilateral nor autonomous, as needed for measure to be imputable to the State and, as such, to be considered State Aid. Therefore, the answer to the second question must be that, while the custom duties incentive scheme constitutes State Aid, the protection of legitimate expectations – through granting compensation –, especially when they were created at a moment when the conflicting rules on State Aid had not been effective, is not State Aid.

As such, there is no obligation for Romania, neither under International Law nor under EU law to recover the paid compensation. However, there are two authors who argue that a compensation rendered as an enforcement of an arbitration award under Foreign Investment Law can constitute a violation of Article 107 of the TFEU if the action leading to an obligation to compensate consists of repealing benefits that are themselves illegal state aid under Article 107 of the TFEU[34]. While I do agree, in principle, with the authors and the opinion of Advocate General Ruiz-Jarabo Colomer in Joined Cases C-346/03 and C-529/03 that if an entitlement to compensation is recognized, the damage cannot be regarded as being equal to the sum of amounts to be repaid, since this would constitute an indirect grant of the aid found to be illegal and incompatible with the common market[35], I cannot agree that this is applicable always, as an absolute rule.

The issue should be assessed on a case by case basis. The authors’ and the Advocate General’s statements do not take into account the legitimate expectations created to the investor. And from an Investment Law point of view, not only does the investor have locus standi under arbitral proceedings in Foreign Investment proceedings, but he is considered a subject of Public International Law[36]. As such, who is to make a hierarchy between the investor’s interests – the protection of his legitimate interests – and those of another subject of Public International Law, the EU – where the fundamental interest is that of the effectiveness of the Internal Market, through a proper competition framework which underpins the functional trade between the EU Member States? From a public international law perspective, the EC legal system remains a subsystem of international law.[37]

Thus, I find such a hierarchy between a subject of Public International Law within the Investment Law field, on the one hand, and the officials of the EU, on the other hand, arbitrary and in violation of basic principles of Public International Law. Moreover, as has been stated somewhere else regarding a similar issue of EU law: just because something is mentioned repeatedly does not turn it into reality.[38]

(c) Notwithstanding specific issues whether enforcement of an investment arbitration award can be considered illegal State Aid, is it justified to ever argue for the termination of an intra-EU IT on the basis of that treaty violating the rules on State Aid prohibition?

Can the intra-EU IT, by itself, be considered as violating EU rules on State Aid? The answer, in my view, is in the negative. This is because investment treaties govern issues such as what constitutes an investment[39], admission of investments[40] or what protection does an investor receive once an investment has been made[41]. In other words, such ITs govern the abstract rules applicable to all investments, not referring to a certain specific investment (of course, the specific investment will benefit from the protection, but on the basis of fitting the framework set by the treaty, not by other means). As such, there is no obligation, ipso jure, to grant an economic advantage which can be considered State Aid under EU rules. The choice to grant that advantage is an economic/ political choice of the State, not an obligation under ITs.

Therefore, it can be concluded that investment treaties are not prohibited under State Aid rules. However, this doesn’t render the issue of the validity of intra-EU Bilateral Investment Treaties obsolete. On the contrary, this is a different discussion, which takes into consideration the common trade policy set by the 2009 Lisbon Treaty[42] and various issues such as questions of jurisdiction of investment tribunals when the parties are an EU Member and an investor from another EU Member[43]. Nonetheless, this is a different issue, going beyond the scope of the present analysis.[44]

  1. What does the relationship between State Aid law and obligations arising under ITs entail when the ITs’ signatories are both from within the EU and from without the EU:

This issue should be easier to analyse, given all that has been presented until now. One of the main problems with the relationship between the obligations arising under intra-EU ITs, on the one hand, and EU State Aid rules, on the other hand, was that the parties to the TFEU were, at the same time, parties to those intra-EU ITs. This situation complicated matters because the conflict was noticeable (although from a different perspective than the one of this analysis – that of the validity of intra-EU ITs). In the case of EU State Aid rules and obligations arising under ITs concluded with third parties, the simple answer is that, because the third party is not a party to the EU, the rules on State Aid are not opposable to it.[45] This does not mean that the EU party granting benefits to an investor from a third State, after the TFEU became effective, is not liable for violations of Article 107. But, at the same time, this will not have any bearing on the earlier obligations arising under the ITs. In that case, if the EU member state decides to repeal any State Aid benefit, it may be in compliance with EU rules on State Aid, but its responsibility will be engaged under customary international law for violating a legal obligation arising under ITs. As a consequence, this breach of international obligations gives rise to an obligation of reparation[46], which does not constitute State Aid – as has been proven in the first part.

III. Conclusion:

The debate over whether there exists a conflict between the legal regime instituted by ITs (excluding those where the EU is a party), on the one hand, and the EU’s legal regime, on the other, is neither straightforward nor devoid of political and economic implications. Through this study, I have analysed a part of this debate: the relationship between ITs, on the one hand, and the legal regime of State Aid law, on the other. I demonstrated, firstly, that obligations specifically arising under ITs are not, by themselves, in conflict with State Aid rules, because there is no ratione materiae identity.

In this context, I made a differentiation between the measures which can be considered illegal State Aid and the ITs (and their provisions such as the ones related to the protection of legitimate expectations), which, although inherently linked to such measures (such as in the Micula case) are, in the end, different. Continuing, I demonstrated why something which tends to be considered an absolute truth – the supremacy of EU law – must be qualified in the international sphere: there is no legal basis under Public International Law to consider such a supremacy when the EU legal regime is in conflict with other international legal regimes. And, finally, I analysed the situation where an IT has signatories both from within and without the EU There, I made a clear differentiation between what can amount to liability of an EU State for violations of Article 107 TFEU and responsibility of the same State under the Customary Law on State Responsibility for violations of obligations contained within ITs. I have shown how an EU State can infringe both legal regimes, at the same time, and why the EU legal regime is relative (and opposable) to the EU States only.


[1]Hereinafter referred to as State Aid law

[2] Hereinafter referred to as IT

[3] For a critique of the concept of self-contained regimes (the idea that supranational or international regimes, such as the EU, are self-contained and cannot be influenced by Public International Law rules, such as Treaty Law or the Law on State Responsibility), see Bruno Simma and Dirk Pulkowski, Of Planets and the Universe: Self-Contained Regimes in International Law, The European Journal of International Law, Vol. 17, no. 3, 2006, hereinafter cited as Simma and Pulkowski. This aspect of mutual influence between those regimes is of utmost importance to the present study, since the starting premise of the present study is that there is a mutual link between semi-autonomous regimes – such as the EU –, on one hand, and general Public International Law rules, on the other. See, for the opposite view (that the EU Legal Regime is an autonomous legal order which is not influenced by Public International Law), Laurens Ankersmit, Is ISDS in EU Trade Agreements Legal under EU law?, https://www.iisd.org/itn/2016/02/29/is-isds-in-eu-trade-agreements-legal-under-eu-law-laurens-ankersmit/ (last visited on 10/02/2018, at 20:58)

[4] Kelyn Bacon, BIT arbitration awards and State aid – the Commission’s Micula decision, http://uksala.org/bit-arbitration-awards-and-state-aid-the-commissions-micula-decision/ (last visited on 10/02/2018, at 20:53)

[5] Christian Tietje, Clemens Wackernagel, Outlawing Compliance? – The Enforcement of intra-EU Investment Awards and EU State Aid law, Policy Papers on Transnational Economic Law, June 2014, p. 2, hereinafter cited as Tietje, Wackernagel

[6] Although a thorough analysis should begin with what constitutes an undertaking, under EU law – since those entities are the beneficiaries of state aid –, I will not undertake such an analysis, for reasons of brevity. Thus, the analysis is considered to refer, implicitly, to such elements.

[7] Hereinafter, referred to as The TFEU

[8] EC (European Commission): Communication from the Commission: Draft Commission Notice on the notion of State aid pursuant to Article 107 (1) TFEU, § 5, p. 4

[9] Tamás Kende, Arbitral Awards Classified as State Aid under European Union Law, ELTE Law Journal 2015/1, p. 40

[10] http://ec.europa.eu/competition/state_aid/overview/index_en.html (last visited on 10/02/2018, at 02:55)

[11] It is true that the situation varies from one case to the other, but I have decided to begin the analysis by qualifying an investment award in abstracto, in order to assess its legality under EU State Aid law and only afterwards I shall address specific cases.

[12] Bryan A. Garner (Editor in Chief), Black’s Law Dictionary. Ninth Edition, WEST. A Thomson Reuters business, St. Paul, MN, USA, 2009, p. 157

[13] Idem, p. 608

[14] The International Centre for Settlement of Investment Disputes

[15] Hereinafter referred to as The ICSID Convention

[16] Article 53 of The ICSID Convention

[17] Hereinafter referred to as The New York Convention

[18] Article III of The New York Convention

[19] According to Article 26 of the 1969 Vienna Convention on the Law of the Treaties, every treaty in force is binding upon the parties to it and must be performed by them in good faith.

[20] Case 61/79, Amministrazione delle finanze del- lo Stato v Denkavit italiana [1980] ECR 1205, § 31

[21] Under Public International Law, the sources of legal obligations can include unilateral conduct or general principles of law, as well (see, for a comprehensive analysis, Malcolm N. Shaw, International Law. Seventh Edition, Cambridge, United Kingdom, 2014, Chapter 3: Sources, pp. 49-91). But, for the present study, this is not important, since obligations arising in Investment Law are based mostly on investment treaties (more specifically, obligations to respect and enforce arbitral awards are the relevant ones for the present analysis), while those based on general principles of law cannot be considered to have appeared from a consensual relationship between the parties to a dispute in a specific dispute. Anyway, from a strictly technical point of view, no matter the source of obligation, the ensuing legal relationship is, in the end, always (at least) bilateral (the correlative existence of the right and of the duty): Arthur L. Corbin, Rights and Duties, 33 Yale Law Journal 501, 1923-1924, p. 502. But what is important, as a bottom-line, is that an arbitral award (and the subsequent obligation of enforcement) arose under a legal relationship outside the scope of the State’s discretionary powers.

[22] Tietje, Wackernagel, p. 7

[23] Sir Hersch Lauterpacht, The Function of Law in the International Community, Oxford University Press, Oxford, United Kingdom, 2011, pp. 3-4

[24] For example, see Case 26/62, Van Gend en Loos [1963], p. 2, § 2 and Case 6/64, Costa v. Enel [1964], p. 594

[25] Ioan Micula, Viorel Micula and others v. Romania: Final Award (ICSID Case No. ARB/05/20)

[26] Article 1 of Commission Decision (EU) 2015/1470 of 30 March 2015 on State aid […] implemented by Romania – Arbitral award Micula v. Romania of 11 December 2013

[27] All the factual information regarding the Micula affair mentioned so far has been gathered from: Kelyn Bacon, BIT arbitration awards and State aid – the Commission’s Micula decision, http://uksala.org/bit-arbitration-awards-and-state-aid-the-commissions-micula-decision/ (last visited on 10/02/2018, at 20:53)

[28] Volterra Fietta, Further attempts by the European Commission to eradicate intra-EU BITs, https://www.volterrafietta.com/further-attempts-by-the-european-commission-to-eradicate-intra-eu-bits/ (last visited on 10/02/2018, at 20:54)

[29] Ioan Micula, Viorel Micula and others v. Romania: Final Award (ICSID Case No. ARB/05/20)

[30] Ioannis Kardassopoulos v. Georgia: Decision on Jurisdiction (ICSID Case no. ARB/05/18, §§ 191-192)

[31] Andreas Kulick, About the Order of Cart and Horse, Among Other Things: Estoppel in the Jurisprudence of International Investment Arbitration Tribunals, The European Journal of International Law, Vol. 27, no. 1, p. 119

[32] I will not get into a detailed discussion of what constitutes estoppel and what is the difference between it and other institutions, such as the one of legitimate expectations. For a detailed analysis of estoppel in International Law and its application by the International Court of Justice, see Alexander Ovchar, Estoppel in the Jurisprudence of the ICJ. A principle promoting stability threatens to undermine it, Bond Law Review, Volume 21, Issue 1.

[33] http://www.oxfordreference.com/view/10.1093/acref/9780195369380.001.0001/acref-9780195369380-e-1282 (last visited on 10/02/2018, at 20:55)

[34] Tietje, Wackernagel, p. 7

[35] Joined  Cases C-346/03 and C-529/03. Opinion of Advocate General Ruiz-Jarabo Colomier, delivered on 28 April 2005, § 198

[36] See Robert McCorquodale, The Individual and the International Law Legal System, in Malcolm D. Evans (ed.), International Law. First Edition, Oxford University Press, Oxford, UK, 2003, pp. 299, 311-314 and 321-322

[37] Simma and Pulkowski, p. 516

[38] Ibid.

[39] Matthias Herdegen, Principles of International Economic Law. Second Edition, Oxford University Press,  Oxford, United Kingdom, 2016, pp. 444-446

[40] Idem, pp. 448-450

[41] Idem, pp. 448-477

[42] Francesco Montanaro and Sophia Paulini, United in Mixity? The Future of the EU Common Commercial Policy in light of the CJEU’s recent case law, EJIL: Talk! Blog, https://www.ejiltalk.org/united-in-mixity-the-future-of-the-eu-common-commercial-policy-in-light-of-the-cjeus-recent-case-law/ (last visited on 10/02/2018, at 20:55)

[43] Emanuela Matei, The love-hate story of arbitral jurisdiction  over claims against states in the EU, EFILA Blog, https://efilablog.org/2016/10/25/the-love-hate-story-of-arbitral-jurisdiction-over-claims-against-states-in-the-eu/ (last visited on 10/02/2018, at 20:56)

[44] For an analysis of this aspect, see: Nikos Lavranos, The Lack of Any Legal Conflict Between EU law and intra-EU BITs/ECT Disputes, EFILA Blog, 25 February 2016, https://efilablog.org/2016/02/25/the-lack-of-any-legal-conflict-between-eu-law-and-intra-eu-bitsect-disputes/ (last visited on 10/02/2018, at 20:55)

[45] The 1969 Vienna Convention on the Law of the Treaties provides, in Article 30 (3.) (b) that when the parties to a later treaty (as is the case when various ITs had existed before the TFEU became effective) do not include all the parties to the earlier one […] as between a State party to both treaties and a State Party to only one of the treaties, the treaty to which both States are parties governs their mutual rights and obligations.

[46] See Article 31 of the ILC Articles on State Responsibility

UK post-Brexit cannot escape the impact of EU law and of the Court of Justice of the EU  

 

Prof. Dr. Nikos Lavranos, LLM (Secretary General of EFILA)

In recent weeks, the UK has published several papers explaining its aims of leaving the EU and how it intends to shape its future trade relationship with the EU.

One of the aims repeatedly publicly stated by the UK will be “to end the direct jurisdiction of the Court of Justice of the EU (CJEU)” as declared in the UK’s paper on ‘Enforcement and dispute resolution’.

Moreover, in another UK paper on the ‘Future customs arrangements’, the UK stated that the “exit from the EU will provide considerable additional opportunities for UK business through ambitious new trade arrangements and comprehensive trade deals that play to the strengths of the UK economy”. In order to achieve that, the paper argues that “the UK will need an independent trade policy, with the freedom to set for ourselves the terms of our trade with the world”.

In other words, the UK is hoping that by leaving the EU it can escape the impact of EU law and of the Court of Justice of the EU (CJEU).

But is this really possible and realistic?

From the outset, the UK already admitted that EU law and the jurisprudence of the CJEU will continue to play an important role in the domestic legal order of the UK. Indeed, in the ‘Enforcement and dispute resolution’ paper, the UK explicitly admits that the “Repeal Bill will give pre-exit CJEU case law the same binding, or precedent, status in UK courts as decisions of our own Supreme Court to ensure a smooth and orderly exit”.

If that is taken as a starting point and one examines what will happen in the field of trade and investment law before the CJEU until March 2019 when Brexit is envisaged, it becomes crystal clear that the room for manoeuvre for the UK is highly limited.

The CJEU will shape the EU’s future trade and investment law

  1. Achmea case

The first case in line, is the Achmea (formerly known Eureko) case. This case concerns the preliminary ruling questions of the German Supreme Court (Bundesgerichtshof) in which it essentially asks the CJEU to rule whether investor-state dispute settlement (ISDS) proceedings based on an intra-EU BIT are compatible with EU law. Achmea had won an arbitration award of about 20 million EUR against the Slovak Republic, which the Slovak Republic is trying to set aside before German courts. Although, the German courts so far have rejected the efforts of the Slovak Republic, the Bundesgerichtshof decided to put this matter before the CJEU.

On 19 September 2017, Advocate General Wathelet delivered his Opinion in the Achmea case. Interestingly, he opined that intra-EU BITs and ISDS under these BITs are in full conformity with EU law. At the same time, he argued that international arbitral tribunals are to equalized with domestic courts/tribunals of EU Member States. Consequently, arbitral tribunals established on the bases of intra-EU BITs should be allowed to ask preliminary questions to the CJEU, while at the same time they are fully bound by EU law and CJEU jurisprudence.

It remains to be seen whether the CJEU will follow this rather innovative approach. However, if the CJEU were to decide in mid-2018 that arbitration on the basis of intra-EU BITs is incompatible with EU law, this would be the end of the ca. 190 intra-BITs. This would also affect the 10 intra-EU BITs, which the UK currently has with other EU Member States (i.e., with Bulgaria, Czech Republic, Estonia, Hungary, Latvia, Lithuania, Poland, Romania, Slovakia and Slovenia). In this context, it is interesting to note that a UK investor has just brought a case against Poland based on their intra-EU BIT. That may soon not be possible anymore, if this and the other intra-EU BITs are judged by the CJEU to be incompatible with EU law. On the other hand, if the UK is able to maintain its intra-EU BITs after Brexit, it could become an interesting location for foreign investors to structure investments through the UK in order to benefit from them. The additional advantage would be that these BITs are based on the “Dutch gold standard” model BIT and thus provide a significantly higher level of protection that the so-called new general investment treaties such as CETA.

  1. Micula case

The other case, which will be of significant importance is the Micula case. This case concerns the enforcement of a 250 million USD ICSID award by Swedish investors against Romania. While Romania was ready to pay out the award, the European Commission has prohibited Romania to do so because the payment of the award would – according to the Commission – constitute illegal state aid to the Micula brothers. Romania – being forced to give priority to EU law – has thus stopped paying the award. The Micula’s have brought an annulment case before the CJEU. If the CJEU were to follow the European Commission, this could mean that ICSID awards may not be so easily and automatically enforceable within the EU as they are supposed to be in accordance with the ICSID Convention. In order to avoid such insecurity, which is caused by the Commission for its own policy interests, the UK post-Brexit may become the preferred place to enforce awards against other EU Member States.

  1. The Belgium questions on the compatibility of the Investment Court System (ICS)

Another very recent development concerns the questions, which Belgium has put to the CJEU as regards the compatibility of the Investment Court System (ICS) with EU law. It will be recalled, that Belgium had promised Wallonia to request an Opinion of the CJEU on this matter in return for Wallonia’s agreement to agree on CETA. As is well known, the ICS is already included in CETA and the FTA between the EU and Vietnam. Indeed, the European Parliament has repeatedly stated that it will only accept EU FTAs with the ICS included. However, the EU-Singapore FTA does not yet include the ICS because the negotiations were concluded long before the ICS proposal came out. Due to the position by the European Parliament, the European Commission has no choice but to re-open the negotiations with Singapore. However, it remains to be seen whether Singapore will accept the ICS.

If that is the case and the EU-Singapore FTA, which the UK has signed, would enter into force, it would replace all the BITs between the EU Member States and Singapore. This would also include the UK-Singapore BIT, which dates from the 1970s.

Consequently, if the EU-Singapore FTA would enter into force before the UK leaves the EU, the UK would lose its BIT with Singapore and would also have to leave the EU-Singapore FTA. In other words, the UK would be left with no investment treaty, unless the UK is able to delay the entering into force of the EU-Singapore FTA until after Brexit. In that case, the UK could maintain its BIT with Singapore and would not be affected by the EU-Singapore FTA – whether or not it has to include the ICS.

Either way, the Opinion of the CJEU on the compatibility of the ICS with EU law will be important for the UK post-Brexit.

Firstly, because the UK Government has already publicly admitted that it does not have the capacities to negotiate many new trade agreements on its own. Instead, it will – as far as possible and as far as the third countries agree – copy and paste the EU’s FTA texts.

Secondly, if the CJEU were to conclude that the ICS is compatible with EU law and this Opinion comes out before March 2019, it will also be binding on the UK.

Consequently, the UK may be forced to accept the ICS proposal in CETA, EU-Vietnam FTA and EU-Singapore FTA – whether or not it agrees with it.

In fact, it may very well be that third states will push the UK to copy and paste as much as possible the EU FTAs texts in order to reduce the degree of potential inconsistencies.

In this context, it should also be mentioned that CETA will provisionally enter into force on 21 September 2017, which means it will also be binding on the UK as of that date. Even though the ICS provisions are excluded from the provisional application, once the CJEU gives its green light on the ICS question, the ICS provisions will be applicable also to the UK – if the UK is still member of the EU. But even if these provisions become applicable only post-Brexit, Canada, Vietnam, Singapore and other states such as Australia and New Zealand are very likely to demand the inclusion of the ICS provisions in their new investment treaties with the UK.

The new dispute settlement body for the post-Brexit UK-EU trade relations

Another important and unresolved issue regarding the future relationship between the post-Brexit UK and the EU concerns the issue of who should settle any disputes between the two and their respective citizens and companies?

For the EU the only acceptable and obvious solution would be the CJEU. However, for the UK that would be an unbearable solution because it would prevent it from achieving its stated aim of “ending the direct jurisdiction of the CJEU”.

Arbitration, which the UK had suggested, is probably an untenable solution in light of the recent backlash against arbitration within the EU.

Equally, the International Court of Justice (ICJ) would not be a practical option for the EU.

Consequently, the only possible option seems to be the EFTA court or a new court similar to it. Prima facie, this would be an acceptable compromise for both parties. The UK could argue that this is not an EU court anymore and that it would no longer be under the “direct” jurisdiction of the CJEU. The EU could agree to it because the CJEU has accepted the EFTA court as the only other international court that is allowed to interpret and apply EU law – all be it by being required to copy and paste the CJEU case-law, which means that the CJEU “indirectly” exercises jurisdiction over the EFTA countries. Accordingly, while the EFTA court could be a workable solution, it would at the end of the mean that the CJEU would continue to have an “indirect” but nonetheless significant impact on the domestic courts of the UK, which is not what the Brexiteers promised.

A reality check: The UK cannot escape the impact of EU law and the CJEU

The only realistic conclusion from the above is that the UK cannot escape the impact of EU law and of the CJEU – long after it has left the EU. In fact, the next 18 months will be of paramount importance for the UK’s future trade and investment policy.

However, so far it seems that this reality has not yet fully been accepted by the UK Government and its negotiators. But a precondition for successful negotiations is to have a full and realistic understanding of one own’s position and the position of the other party in order to achieve an optimal result. Ignoring the impact which the above-mentioned CJEU decisions will have on the EU’s and UK’s trade and investment policy would be a costly mistake.

Just Because State Aid Is The Best Hammer Does Not Mean That All Issues Are Nails (Part II)

by Emanuela Matei, Associate Researcher – CELS*

This article represents Part 2/2 of a larger material regarding the interaction of EU state aid rules and international investment law in the context of recent EC Decisions. Part 1/2 was published earlier this week.

B.  Selectivity

Whether a regulatory measure is selective shall be examined within the context of the particular legal system by verifying whether the measure constitutes an advantage for certain undertakings in comparison with others, which are in a comparable legal and factual situation. Since the present case concerns a regional scheme, the financial autonomy of that region may justify a differentiation[i]. However, the mere fact of acting on the basis of a regional development or social cohesion policy would be insufficient in itself to justify a measure adopted within the framework of that policy[ii]. The disfavoured regions do not enjoy fiscal autonomy, thus the regional character of the measure would be sufficient to prove the selectivity of the aid. The Commission chose nonetheless a different line of argumentation.

‘…compensation for damages will not selectively benefit an individual undertaking only insofar as that compensation follows from the application of a general rule of law for government liability which every individual can invoke, so that it excludes that any compensation granted confers a selective benefit on certain groups in society’.

The Commission affirms that the compensation does not follow from the application of a general rule of law for government liability, since the access to justice is restricted to certain groups of individuals, i.e. foreign investors covered by the BITs. It concludes that to the extent that paying compensation awarded to an investor pursuant to a BIT amounts to granting an advantage, the advantage is selective.

In my view, first and most important, it is not necessary to go so long in order to prove the selectivity of the measure, since the scheme is regional and the award does nothing more than re-establishing the facilities granted by that scheme.

Secondly, if such definition of selectivity were admitted by the CJEU, the scope of the State aid would go beyond ‘wide’. It would potentially cover all situations, where a conflict between a State and an undertaking can be solved by arbitration. It would outlaw investor-State arbitration as such. The current solution for investor protection is based on a network of BIT-agreements including an ISDS-clause together with a worldwide affiliation to the ICSID Convention. The complexity of this structure consists in its apparent bilateralism and inward transnationalism. The Micula dispute may appear to be an issue between Romania and two associated Swedish investors, but in reality, it concerns the reliability of the current system of investor protection.

Thirdly, concerning the ‘selective’ access to justice examined vis-à-vis the matter of State aid control, there is no difference between intra- and extra-EU BITs. There is nothing in the State aid law that stipulates that the prohibition of State aid only applies, if the investor-beneficiary is national of a Member State. If the definition of selectivity is derived from the application of an exceptional rule of government liability, which not every individual can invoke, the extra-EU BITs would also be deemed illegal, unless they could qualify for an exemption as stated by Article 351 TFEU.

C.  Upon an undertaking

An investor can be involved in FDI or could act as a portfolio investor. Micula brothers are direct investors with a long-term strategical approach, so normally, no distinction can be made between the legal situations of a direct investor, who is a natural person and a legal person as vehicle of direct investment[iii]. I agree with the Commission that in the present case no difference can be made depending on whether the compensation collectively awarded to all five claimants by the Tribunal is paid out to the shareholders or to the companies owned by them.

However, I must point out, an important factor. A distinction must be made between the grant upon an undertaking i.e. a single economic unit and the recovery of State aid that obviously must be applied in relation to a person. A shareholder, who is directly involved in the day-by-day management of fully owned companies will be covered by the notion of undertaking[iv]. In the present case, it is the award that states who is entitled to payment and the recovery of aid shall follow the same assessment, as long as the award does nothing more than restoring the fiscal facilities put in place by EGO 24.

The previously distinct line between the grant of aid to an undertaking as element of State aid definition, which is an abstract concept and the matter of recovery, which is a concrete device, a legal remedy, has been blurred by a recent CJEU ruling[v]. This new theory of a maintained separate legal personality of the State aid beneficiary in relation to its controlling shareholder – even if it appears to be inconsistent with the usual understanding of the doctrine of single economic unit – could support the argumentation claiming that the shareholders’ interests as natural persons would depart from the interests of the three corporate claimants[vi].

D.  Imputability

The question of imputability is theoretically the most interesting. The initial advantage is granted by Romania to investors established in a certain disfavoured region, but the enforcement of the award may be ordered by any of the ICSID-members, inside and outside the EU. Would such a payment still be imputable to Romania?

According to the Commission, the answer is affirmative, since the voluntary agreement of Romania to enter into the BIT created the conditions for the selective advantage resulting from the award. Is the act of signing a BIT five years before the accession to the EU illegal under EU law? Is there a direct causal relation between this act and the grant of State aid? If the act were illegal would the culpability be attributed to Romania alone? If Romania had chosen to terminate the BIT in January 2007, the BIT sunset clause would have nonetheless maintained the protection for investments already in place until 2027. It would not have changed anything with regard to the Micula dispute.

The adoption of EGO 24 is definitely an act of State, but the enforced payment of the award by means of seizing assets abroad ordered by foreign courts or bailiffs cannot be attributed to Romania based on the simple observation that Romania did not terminate its BIT in 2007 or because it entered into a BIT agreement in 2002. The question of imputability is extremely complex and the State aid instrument is in my opinion too blunt to be able to cope with this complexity. While a payment ordered by a Romanian court or bailiff is imputable to the Member State in line with the obligations assumed according to the Treaties, a payment ordered by a Belgian or an U.S. federal court cannot be imputable to Romania, unless it can be substantiated that the act of engaging in BIT agreements is illegal per se under EU law.

III.          Conclusions

According to the available information, the adoption of EGO 24 established a derogation from the regime of ‘normal taxation’ implying an economic advantage. This advantage is selective due to its regional character and as any other regulatory measure is imputable to the state. It is supported by state resources, as a negative advantage that consists in a derogation from generally applicable fiscal obligations. The measure has not been notified to the Commission and it has been found illegal by the Romanian Council of Competition in May 2000. According to Atzeni a compensation that restores an illegal State aid cannot be allowed under EU law, therefore the Asteris exemption is not applicable.

The Commission tries instead to prove that the enforcement of the award issued in 2013 would in itself constitute unlawful State aid. I disagree with this line of argumentation. First, it would be redundant to prove a distinct aid entailed by the enforcement of the award and secondly, it would lead to unreasonable implications. The fact that Romania signed the BIT five years before its accession to the EU and three years before even becoming an acceding country, supports the idea that Romania cannot be held culpable under EU law for the decision to engage in such agreements. If the signing of a BIT had been forbidden under EU law, the attention of the Commission should have been directed towards the other party of the agreement, Sweden, a Member State with full rights and obligations at the relevant time.

Concerning the allegeable obligation to terminate the BIT, it must be said, first that the measure would have no effect on present investments and secondly, that Romania cannot be held as solely responsible for the maintaining of a parallel system of protection that potentially could threaten the autonomy of the Union legal order. The legality of the BIT in question should not be examined in isolation, since the practicability of the present system of investor protection relies on a network structure and the privileged access to arbitration of foreign investors. By disconnecting one node from the network, the problems indicated by the Commission in its decision at point 66, namely, the fact that the current system of State liability is not applicable to any investor, will not be solved.

The applicants in the present case personify the global community of foreign investors and represent the interests pleading in favour of maintaining the system of protection that pre-existed the EU law. State aid control is the appropriate tool for treating bi-dimensional relations between States and undertakings, but it does not seem to be adequate for dealing with triangular relations between a State and the community of foreign investors represented by the web of transnational institutions established under international law. Such matters of incompatibility between the pre- and post-Lisbon system of investor protection or between pre- and post-accession State aid measures should have been addressed by making use of other more appropriate instruments.


[i] Case C-88/03, Portugal/Commission [2006] ECR I-07115 [67].

[ii] Idem [82].

[iii] Case C-222/04 Cassa di Risparmio di Firenze SpA and Others [2006] ECR I-00289 [112].

[iv] Case C-170/83 Hydrotherm [1984] ECR I-2999 [11].

[v] Case C‑357/14 P Dunamenti v Commission, not yet reported [115].

[vi] Commission Decision (EU) 2015/1470 of 30 March 2015 on State aid SA.38517 (2014/C) (ex 2014/NN) implemented by Romania, OJ L 232, 4.9.2015, p. 43–70 [59].


Emanuela Matei,  Associate Researcher at the Centre of European Legal Studies, Bucharest. Juris Master in European Business Law (Lund University, June 2012), Magister legum (Lund University, June 2010), BSc in Economics & Business Administration (Lund University, June 2009).

Just Because State Aid Is The Best Hammer Does Not Mean That All Issues Are Nails (Part I)

by Emanuela Matei, Associate Researcher – CELS*

This article represents Part 1/2 of a larger material regarding the interaction of EU state aid rules and international investment law in the context of recent EC Decisions. Part 2/2 will be published later this week.

 I.          Introduction

In May 2014, Obama defended a more relaxed foreign policy that entailed less military interventions, by stating, I cite: ‘Just because we have the best hammer does not mean that every problem is a nail[i]. The same observation can be made in relation to the Commission’s all-encompassing use of the versatile tool of State aid control. It would most probably not nail all forms of state liability. In particular with regard to regulatory measures adopted by a Member State before its accession to the EU, the application of State aid rules must be more precisely calibrated.

The Micula arbitral award established in December 2013 that by annulling an investment incentive scheme four years prior to its scheduled expiry in 2009, Romania failed to comply with its obligations assumed via the Romania-Sweden BIT, which had come into force in 2003.

In its decision of 30 March 2015, the Commission found that the compensation paid by Romania according of the named arbitral award breached the State aid prohibition. State aid is forbidden unless notified and approved by the European Commission. An extra intricacy of the present case relates to the fact that at the moment, when the notification had to be made, Romania was not yet a Member State of the Union. The standstill obligation existed according to the acquis, though the prerogatives of control were attributed to the Romanian Council of Competition.

II.      State aid Definition

According to the Commission, the revoked investment incentive scheme selectively favoured certain investors and was therefore deemed to be incompatible with the state aid rules. In order to classify a national measure as State aid, the following criteria must be examined and cumulatively fulfilled:

  • The measure must confer a selective economic advantage upon an undertaking;
  • The measure must be imputable to the state and financed through state resources;
  • The measure must distort or threaten to distort competition;
  • The measure must have the potential to affect trade between Member States.

Four conditions will be analysed in this post: the presence of an advantage, its selectivity, its imputability and the definition of an undertaking which may benefit from the aid.

A.  An economic advantage

A.1. A derogation from ‘normal taxation’ is an advantage

The concept of State aid is broader than that of a subsidy, since it comprises not merely positive benefits, such as subsidies themselves, but also interferences which, in diverse forms, mitigate the charges that are regularly included in the budget of an undertaking and which, without therefore being subsidies in the strict meaning of the word, are comparable in character and have the same effect[ii].

The concept of aid has constantly been interpreted by the CJEU as not covering measures that distinguish between undertakings in relation to charges, where that differentiation is the result of the nature and general scheme of the fiscal system. The very existence of an advantage may be established only when compared with ‘normal’ taxation’[iii].

The line of argumentation followed by the Commission asserts that ‘by repealing the EGO 24 scheme, Romania re-established normal conditions of competition on the market on which the claimants operate, and any attempt to compensate the claimants for the consequences of the revocation of the EGO 24 incentives grants an advantage not available under those normal market conditions’[iv]. I see no valid explanation for choosing the test of ‘normal market conditions’ instead of the benchmarking of ‘normal taxation’ in the present case.

In its recent negative decision in case SA.38375[v], the Commission repeats this choice while applying the ‘normal market conditions’ test (one form of it, the Market Economy Investor Principle) to a case concerning tax rulings, despite the fact that the measures concerned were administrative i.e. non-economic in nature[vi].

The Romanian legislation in Micula granted a derogation from the general regime of taxes and customs duties and the award re-established the initial economic advantage by ordering the compensation of those previously abolished fiscal facilities.

The AG Colomer[vii] has noticed in his Opinion in the Atzeni case that even if the entitlement to compensation is recognised, the amount prescribed cannot be equal to the sum that must be recovered according to the standstill prohibition enshrined in Article 108(3) TFEU and the article 14 of the Regulation No 659/1999[viii]. The Commission affirms that the Award was based on an amount corresponding to the fiscal facilities provided by EGO24 including lost profits plus interest.

The compensation provided for by the Award is based on an amount corresponding to the customs duties charged on raw materials, lost profits and interest on the total sum of damages awarded[ix].

However, the calculation of State aid cannot be based on the Award, but it must be assessed independently taking into consideration the difference between the ordinary expenses and the subsidised expenses under EGO24 with reference to the situation prior to payment of the aid[x]. In Dunamenti it has been established that even if the Article 107 TFEU became applicable on the accession date, the analysis of the measure must be done in the context of the period in which it had been granted.

The relevant factual circumstances of the grant cannot be disregarded solely because they have preceded the accession[xi]. In case, the Award exceeded the amount of aid granted under EGO24, which is the regulatory measure examined by the Romanian Council of Competition in its decision of May 2000, this excess cannot be deemed to constitute indirect State aid as established by the Atzeni Opinion.

A.2.   Compensation for damages is not an advantage

The principle of State responsibility for loss and damage caused to individuals because of breaches of European Union law for which the State can be held liable is enshrined by the system of the treaties on which the European Union is based[xii]. In Asteris, the CJEU established that State aid is fundamentally different in its legal nature from the amounts paid to individuals as compensation for the damage caused by public authorities and that, in consequence, such damages do not constitute aid for the purposes of Articles 107 and 108 TFEU[xiii].

Acknowledging the fact that EU law does not allow an unconditional permeation of obligations derived from international law, the main difference between a Micula entitlement and the Asteris right to bring an action for payment is the source of the obligations on which the claim for payment is based.[xiv] Greece was expected to implement EU law obligations, while Romania is responsible for implementing an obligation arisen from a BIT and affirmed by an ICSID-award.

The CJEU recognised a distinction between an action for damages under Article 340 TFEU and an action for payment concerning the liability of the national authorities responsible for implementing Union law, which individuals are seeking to establish before national courts[xv]. Hence, it can concluded that the Asteris liability is a distinct case, since it does not entail a sufficiently serious breach of an EU law obligation borne by the State.

On the other hand, the entitlement to payment in Micula ought to be interpreted in the light of the relevant rules of customary international law, which is part of the Union legal order and is compulsory for its institutions[xvi]. The BITs obligations go beyond the field of customary international law, ensuring a higher level of protection for the investor that can be recognised under EU law, only if it concurs with the specific characteristics and the autonomy of the Union legal order[xvii]. The Commission considered that the BIT obligations were not conform to EU law and subsequently, the action for payment could not be supported by an Asteris claim.


[i] Read more at: http://www.nationalreview.com/corner/378955/obama-west-point-because-we-have-best-hammer-does-not-mean-every-problem-nail-andrew.

[ii] Case 30/59 De Gezamenlijke Steenkolenmijnen in Limburg v High Authority [1961] ECR 1.

[iii] Case 173/73 Italy/Commission [1974] ECR I- 00709 [15].

[iv] Commission Decision (EU) 2015/1470 of 30 March 2015 on State aid SA.38517 (2014/C) (ex 2014/NN) implemented by Romania, OJ L 232, 4.9.2015, p. 43–70 [92].

[v] Commission Decision, State aid SA. 38375 (2014/NN) (ex 2014/CP) Brussels, 11.06.2014. The final decision of 21 October 2015 not yet published. Read also my commentary (click here).

[vi] Read more at: http://www.kluwertaxlawblog.com/blog/2015/10/28/the-interplay-between-the-state-aid-rules-and-other-beps-preventing-tools-sa-38375/.

[vii] AG Opinion, AG Colomer, Joined Cases C-346/03 and C-529/03 Atzeni [2006] ECR I-01875 [198].

[viii] ‘It should be noted that, if an entitlement to compensation is recognised, the damage cannot be regarded as being equal to the sum of the amounts to be repaid, since this would constitute an indirect grant of the aid found to be illegal and incompatible with the common market’.

[ix] Commission Decision (EU) 2015/1470 of 30 March 2015 on State aid SA.38517 (2014/C) (ex 2014/NN) implemented by Romania, OJ L 232, 4.9.2015, p. 43–70 [123].

[x] Case T‑473/12 Aer Lingus, not yet reported [83]. See, to that effect, C‑277/00 Germany /Commission [2004] ECR I-03925 [74-5].

[xi] Opinion AG Wathelet, Case C‑357/14 P Dunamenti Erőmű, not yet reported [121].

[xii] Joined Cases C-6/90 and C-9/90 Francovich and Others [1991] ECR I-5357 [35]; Joined Cases C-46/93 and C-48/93 Brasserie du Pêcheur and Factortame [1996] ECR I-1029 [31]; and Case C‑445/06 Danske Slagterier [2009] ECR I‑0000 [19].

[xiii] Joined cases 106 to 120/87 Asteris/Greece (Asteris III), [1988] ECR I-05515.

[xiv] Opinion 2/13 of 18 December 2014, not yet reported [201].

[xv] Asteris III [25-6].

[xvi] Case C‑179/13, Evans, not yet reported [35]

[xvii] Opinion 2/13 of 18 December 2014, not yet reported [174].


Emanuela Matei,  Associate Researcher at the Centre of European Legal Studies, Bucharest. Juris Master in European Business Law (Lund University, June 2012), Magister legum (Lund University, June 2010), BSc in Economics & Business Administration (Lund University, June 2009).