25 January 2022 (*)
(Appeal - State aid – Articles 107 and 108 TFEU – Bilateral Investment Treaty – Arbitration clause –
Romania – Accession to the European Union – Repeal of a tax incentives scheme prior to accession –
Arbitral award granting payment of damages after accession – European Commission decision
declaring that payment to be State aid incompatible with the internal market and ordering its recovery –
Competence of the Commission – Application ratione temporis of EU law – Determination of the date
at which the right to receive aid is conferred on the beneficiary – Article 19 TEU – Articles 267 and
344 TFEU – Autonomy of EU law)
In Case C-638/19 P,
APPEAL under Article 56 of the Statute of the Court of Justice of the European Union, brought on
27 August 2019,
European Commission, represented by T. Maxian Rusche and P.-J. Loewenthal, acting as Agents,
applicant,
supported by:
Federal Republic of Germany, represented by D. Klebs, R. Kanitz and J. Möller, acting as Agents,
Republic of Latvia, represented by K. Pommere, acting as Agent,
Republic of Poland, represented by D. Lutostańska, B. Majczyna and M. Rzotkiewicz, acting as
Agents,
interveners in the appeal,
the other parties to the proceedings being:
European Food SA, established in Drăgănești (Romania),
Starmill SRL, established in Drăgăneşti,
Multipack SRL, established in Drăgăneşti,
Scandic Distilleries SA, established in Oradea (Romania),
Ioan Micula, residing in Oradea,
represented by K. Struckmann, Rechtsanwalt, and G. Forwood, avocat, and by A. Kadri, Solicitor,
Viorel Micula, residing in Oradea,
European Drinks SA, established in Ştei (Romania),
Rieni Drinks SA, established in Rieni (Romania),
Transilvania General Import-Export SRL, established in Oradea,
West Leasing SRL, formerly West Leasing International SRL, established in Păntășești (Romania),
represented by J. Derenne, D. Vallindas and O. Popescu, avocats,
[Page 1]
applicants at first instance,
Kingdom of Spain, represented initially by S. Centeno Huerta, acting as Agent, and subsequently by
A. Gavela Llopis, acting as Agent,
Hungary,
interveners at first instance,
THE COURT (Grand Chamber),
composed of K. Lenaerts, President, A. Arabadjiev, A. Prechal, K. Jürimäe, C. Lycourgos, E. Regan
(Rapporteur), S. Rodin and I. Jarukaitis, Presidents of Chambers, M. Ilešič, F. Biltgen, N. Piçarra,
L.S. Rossi and A. Kumin, Judges,
Advocate General: M. Szpunar,
Registrar: M. Longar, Administrator,
having regard to the written procedure and further to the hearing on 20 April 2021,
after hearing the Opinion of the Advocate General at the sitting on 1 July 2021,
gives the following
Judgment
1 By its appeal the European Commission seeks to have set aside the Judgment of the General Court of
the European Union of 18 June 2019, European Food and Others v Commission (T-624/15, T-694/15
and T-704/15, 'the judgment under appeal', EU:T:2019:423), by which it annulled Commission
Decision (EU) 2015/1470 of 30 March 2015 on State aid SA.38517 (2014/C) (ex 2014/NN)
implemented by Romania – Arbitral award Micula v Romania of 11 December 2013 (OJ 2015 L 232,
p. 43) ('the decision at issue').
2 By its cross-appeal the Kingdom of Spain also seeks to have the judgment under appeal set aside.
3 The Convention on the Settlement of Investment Disputes between States and Nationals of Other
States, concluded in Washington on 18 March 1965 (‘the ICSID Convention'), which entered into
force with respect to Romania on 12 October 1975, provides in Article 53(1):
‘The award shall be binding on the parties and shall not be subject to any appeal or to any other remedy
except those provided for in this Convention. Each party shall abide by and comply with the terms of
the award ...'
4 Article 54(1) of the ICSID Convention provides:
'Each Contracting State shall recognise an award rendered pursuant to this Convention as binding and
enforce the pecuniary obligations imposed by that award within its territories as if it were a final
judgment of a court in that State ...'
[Page 2]
5 The Europe Agreement establishing an association between the European Economic Communities and
their Member States, of the one part, and Romania, of the other part, concluded and approved on behalf
of the Community by Decision 94/907/ECSC, EC, Euratom of the Council and the Commission of
19 December 1994 (OJ 1994 L 357, p. 2, ‘the Europe Agreement'), which entered into force on
1 February 1995, provided in Article 64(1) and (2) as follows:
'1. The following are incompatible with the proper functioning of this Agreement, in so far as they
may affect trade between the Community and Romania:...
(iii) any public aid which distorts or threatens to distort competition by favouring certain
undertakings or the production of certain goods.2. Any practices contrary to this Article shall be assessed on the basis of criteria arising from the
application of the rules of Articles [101, 102 and 107 TFEU]'.
6 Under Articles 69 and 71 of The Europe Agreement, Romania was required to align its national
legislation with the acquis communautaire.
7 The Bilateral Investment Treaty concluded on 29 May 2002 between the Swedish Government and the
Romanian Government on the Promotion and Reciprocal Protection of Investments (‘the BIT'), which
entered into force on 1 July 2003, provides, in Article 2(3):
'Each Contracting Party shall at all times ensure fair and equitable treatment of the investments by
investors of the other Contracting Party and shall not impair, by means of arbitrary or discriminatory
measures, the administration, management, maintenance, use, enjoyment or disposal thereof by those
investors'.
8 Article 7 of the BIT provides that any dispute between investors and the Contracting Parties is to be
settled, inter alia, by an arbitral tribunal which applies the ICSID Convention (‘the arbitration clause').
9 Under the Treaty on the accession of the Republic of Bulgaria and Romania to the European Union
(OJ 2005 L 157, p. 11), signed on 25 April 2005, Romania acceded to the European Union with effect
from 1 January 2007.
10 Article 2 of the Act concerning the conditions of accession of the Republic of Bulgaria and Romania
and the adjustments to the Treaties on which the European Union is founded (OJ 2005 L 157, p. 203,
'the Act of Accession') states:
'From the date of accession, the provisions of the original Treaties and the acts adopted by the
institutions ... before accession shall be binding on ... Romania and shall apply in [that State] under
the conditions laid down in those Treaties and in this Act.'
11 Annex V to the Act of Accession includes Chapter 2, entitled ‘Competition policy', which contains, in
paragraphs 1 and 5, specific provisions concerning aid schemes and individual aid implemented in
Romania before the date of accession to the European Union and still applicable after that date.
12 Under the heading ‘Formal investigation procedure', Article 6 of Council Regulation (EC)
No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 108 [TFEU]
(OJ 1999 L 83, p. 1) as amended by Council Regulation (EU) No 734/213 of 22 July 2013 (OJ 2013
L 204, p. 15) (‘Regulation No 659/1999') provided in paragraph 1.
[Page 3]
'The decision to initiate the formal investigation procedure shall summarise the relevant issues of fact
and law, shall include a preliminary assessment of the Commission as to the aid character of the
proposed measure and shall set out the doubts as to its compatibility with the [internal] market. The
decision shall call upon the Member State concerned and upon other interested parties to submit
comments within a prescribed period which shall normally not exceed one month. ...'
13 The background to the dispute, as described in paragraphs 1 to 42 of the judgment under appeal, may
be summarised as follows.
14 On 2 October 1998, the Romanian authorities adopted Emergency Government Ordinance No 24/1998
('EGO 24'), granting certain investors in disadvantaged regions who had obtained permanent investor
certificates a series of tax incentives, including, inter alia, facilities such as exemption from customs
duties and value added tax for machinery, reimbursement of customs duties for raw materials and
exemption from the payment of profit tax which applied for as long as the relevant area was designated
as a 'disadvantaged region'.
15 By decision of 25 March 1999, the Romanian Government designated the mining area of Ștei-Nucet,
Bihor County (Romania), to be a 'disadvantaged region' for 10 years, with effect from 1 April 1999.
16 In order to comply with the obligation progressively to align Romanian legislation with European
Union legislation laid down by the Europe Agreement, Romania adopted in 1999 Law No 143/1999 on
State aid, which entered into force on 1 January 2000. That law defined State aid in the same terms as
those used in Article 64 of the Europe Agreement and in Article 107(1) TFEU. It also designated the
Consiliul Concurenței (Competition Council, Romania) and the Oficiul Concurenței (Competition
Office, Romania) as the national State aid surveillance authorities competent to assess the
compatibility of State aid granted by Romania to undertakings.
17 By Decision No 244/2000 the Competition Council found that several of the tax incentives granted
under EGO 24 constituted State aid and consequently had to be revoked.
18 On 1 July 2000, Emergency Government Ordinance No 75/2000 (‘EGO 75'), amended EGO 24 while
maintaining the tax incentives at issue (together, ‘the tax incentives scheme at issue').
19 The Competition Council brought an action before the Curtea de Apel București (Court of Appeal,
Bucharest, Romania) in which it submitted that, in spite of the adoption of EGO 75, its Decision
No 244/2000 had not been implemented. That action was dismissed on 26 January 2001 on the ground
that EGO 75 had to be regarded as a legislative act and that consequently its lawfulness could not be
contested by the Competition Council pursuant to Law No 143/1999. By a judgment of 19 February
2002 the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania) confirmed
that decision.
20 Mr Ioan Micula and Mr Viorel Micula, Swedish citizens residing in Romania, are the majority
shareholders of the European Food and Drinks Group, whose activities include the production of food
and drink in the region of Ștei-Nucet, Bihor County. The company European Food and Drinks Group
owns European Food SA, Starmill SRL, Multipack SRL, Scandic Distilleries SA, European Drinks SA,
Rieni Drinks SA, Transilvania General Import-Export SRL and West Leasing International SRL.
21 On the basis of the permanent investor certificates, obtained on 1 June 2000 by European Food and on
17 May 2002 by Starmill and Multipack, those three companies made investments in the mining area
Ştei-Nucet.
22 In February 2000 the negotiations for the accession of Romania to the European Union started. In
those negotiations the European Union noted, in the common position of 21 November 2001, that in
Romania there were ‘a number of existing as well as new incompatible aid schemes which [had] not
been brought into line with the acquis', including ‘facilities provided under [the tax incentives scheme
at issue]'.
[Page 4]
23 On 26 August 2004 Romania repealed all the measures granted under the tax incentives scheme at
issue with the exception of the exemption from corporate tax, stating that ‘in order to meet the criteria
in the Community rules on State aid, and also to complete the negotiations under Chapter No 6 –
Competition Policy, it [was] necessary to eliminate all forms of State aid in national legislation
incompatible with the acquis communautaire in this area'. That repeal came into effect on 22 February
2005.
24 On 28 July 2005 Mr Ioan Micula, Mr Viorel Micula, European Food, Starmill and Multipack (‘the
arbitration applicants'), requested the establishment of an arbitral tribunal pursuant to Article 7 of the
BIT, in order to obtain compensation for the damage resulting from the revocation of the tax incentives
scheme at issue.
25 On 1 January 2007 Romania acceded to the European Union.
26 By decision of 24 September 2008, the arbitral tribunal found that the arbitration applicants' claims
were admissible.
27 In its arbitral award of 11 December 2013 (‘the arbitral award') the arbitral tribunal found that, by
repealing the tax incentives scheme at issue prior to 1 April 2009, Romania had violated the legitimate
expectations of the [arbitration applicants] who thought that those incentives would be available, in
substantially the same form, until 31 March 2009 inclusive, had failed to act transparently by failing to
inform those applicants in a timely manner and had failed to ensure fair and equitable treatment of the
investments of those applicants, within the meaning of Article 2(3) of the BIT. Consequently, the
arbitral tribunal ordered Romania to pay the arbitration applicants, by way of damages, the sum of
791 882 452 Romanian lei (RON) (approximately EUR 178 millions), that sum being fixed by taking
into account principally the loss allegedly suffered by the applicants in the period from 22 February
2005 until 31 March 2009.
28 On 31 January 2014, the Commission services informed the Romanian authorities that any
implementation or execution of the arbitral award would be regarded as constituting new aid and
would have to be notified to the Commission.
29 On 20 February 2014, the Romanian authorities informed the Commission services that they had paid
part of sum awarded by the arbitral tribunal to the arbitration applicants by way of damages, by
offsetting it against taxes owed to the Romanian authorities by European Food.
30 On 26 May 2014, the Commission adopted Decision C(2014) 3192 final, obliging Romania
immediately to suspend any action that might lead to the implementation or execution of the arbitral
award, on the ground that such action appeared to constitute unlawful State aid, until the Commission
had taken a final decision on the compatibility of that State aid with the internal market.
31 On 1 October 2014 the Commission informed Romania that it had decided to initiate the formal
investigation procedure laid down in Article 108(2) TFEU in respect of the partial implementation of
the arbitral award by Romania that took place in early 2014 as well as in respect of any further
implementation or execution of the arbitral award.
32 On 29 May 2015 the Romanian authorities transferred the remainder of the sum due under the arbitral
award and, thus, regarded that award as having been fully implemented.
33 On 30 March 2015 the Commission adopted the decision at issue. Article 1 of that decision provides
that the payment of the compensation awarded by [the arbitral] award to the single economic unit
comprising Ioan Micula, Viorel Micula, European Food, Starmill, Multipack, European Drinks, Rieni
Drinks, Scandic Distilleries, Transilvania General Import-Export and West Leasing constitutes a ‘State
aid' within the meaning of Article 107(1) TFEU which is incompatible with the internal market.
Pursuant to Article 2 of that decision, Romania is required not to pay out any incompatible aid referred
to in Article 1 of the decision and to recover such aid which has already been paid out to the entities
comprising that economic unit as well as any aid paid out to those entities which was not notified to the
Commission pursuant to Article 108(3) TFEU, and any aid paid out after the date of that decision.
[Page 5]
34 By applications lodged at the Registry of the General Court on 6, 30 and 28 November 2015
respectively, European Food, Starmill, Multipack and Scandic Distilleries, in Case T-624/15, Mr Ioan
Micula, in Case T-694/15, and Mr Viorel Micula, European Drinks, Rieni Drinks, Transilvania General
Import-Export and West Leasing International, in Case T-704/15, each brought an action pursuant to
Article 263 TFEU for annulment of the decision at issue. The General Court granted the Kingdom of
Spain and Hungary leave to intervene in support of the form of order sought by the Commission. In
application of Article 68 of its Rules of Procedure, the General Court joined the three cases for the
purposes of the decision closing the proceedings.
35 The General Court found that in support of their action, the appellants raised seven pleas in law. The
first plea alleged the Commission's lack of competence to adopt the decision at issue and an abuse of
power as well as failure properly to apply Article 351 TFEU and general principles of law. The second
plea alleged infringement of Article 107(1) TFEU. The third plea alleged a breach of the principle of
the protection of legitimate expectations. The fourth plea alleged an error in the assessment of the
compatibility of the measure at issue with the internal market. The fifth plea alleged an error in the
determination of the beneficiaries of the aid and failure to state reasons. The sixth plea alleged an error
of law relating to the recovery of the aid. Lastly, the seventh plea alleged a breach of the right to be
heard and infringement of Article 108(3) TFEU and Article 6(1) of Regulation No 659/1999.
36 By the judgment under appeal, the General Court upheld the first part of the first plea raised in Case
T-704/15 and the first part of the second plea raised in Cases T-624/15 and T-694/15 alleging, first, the
Commission's lack of competence to adopt the decision at issue under Article 108 TFEU and,
secondly, the absence of advantage, within the meaning of Article 107(1) TFEU, conferred by the
payment of damages in that, in particular, the purported advantage was granted before Romania's
accession to the European Union. It held, in essence, in paragraphs 59 to 93 of that judgment that, by
adopting the decision at issue, the Commission had retroactively applied the powers which it held
under Article 108 TFEU and Regulation No 659/1999 to events predating Romania's accession and
that the Commission could not therefore classify the measure at issue, namely – according to that
decision – the payment of compensation awarded by the arbitral tribunal by way of compensation for
the damage that the arbitration applicants allegedly suffered due to the repeal by that State of the tax
incentives scheme at issue, as ‘State aid' within the meaning of Article 107(1) TFEU.
37 In addition, the General Court upheld the second part of the second plea raised in Cases T-624/15 and
T-694/15, and the first part of the second plea raised in Case T-704/15, alleging, in essence, the
erroneous legal classification of the award of compensation by the arbitral tribunal as an 'advantage'
and 'aid' within the meaning of Article 107 TFEU. In that regard the General Court essentially held, in
paragraphs 98 to 111 of the judgment under appeal that, since EU law did not apply ratione temporis
and the Commission lacked competence under Article 108 TFEU and Regulation No 659/1999, the
decision at issue was unlawful in so far as it classified as an ‘advantage' and 'aid', within the meaning
of Article 107(1) TFEU, the award of that compensation, at least in respect of the period predating the
entry into force of EU law in Romania.
38 Consequently, the General Court annulled the decision at issue in its entirety, without examining the
other parts of those pleas or the other pleas.
39 By its appeal, the Commission submits that the Court should:
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40 European Food, Starmill, Multipack and Scandic Distilleries, and also Mr Ioan Micula (together,
'European Food and Others') contend that the Court should:
41 Mr Viorel Micula, European Drinks, Rieni Drinks, Transilvania General Import-Export and West
Leasing (together, ‘Viorel Micula and Others') contend that the Court should:
42 The Kingdom of Spain contends that the Court should:
43 By its cross-appeal, the Kingdom of Spain submits that the Court should:
44 The Commission submits that the cross-appeal should be allowed.
45 European Food and Others and Viorel Micula and Others contend that the cross-appeal should be
dismissed and that the Kingdom of Spain, the Commission and the interveners should be ordered to
bear their own costs in respect of the cross-appeal and that the Kingdom of Spain should be ordered to
pay the costs incurred by European Food and Others and by Viorel Micula and Others in the context of
the cross-appeal.
46 The Republic of Poland and the Republic of Latvia applied, by letters dated 25 November and
5 December 2019 respectively, pursuant to the first paragraph of Article 40 of the Statute of the Court
of Justice of the European Union for leave to intervene in support of the Commission.
[Page 7]
47 By decisions of the President of the Court of 6 and 9 January 2020 the Republic of Poland and the
Republic of Latvia respectively were granted leave to intervene, the latter Member State only, in
accordance with Article 129(4) of the Rules of Procedure of the Court, in order to submit its
observations at the hearing, should a hearing take place, its application to intervene having been made
after the time limit set out in Article 190(2) of those rules had expired.
48 By letters of 17 March 2020, European Food and Others and Viorel Micula and Others requested that
the Court exclude the Kingdom of Spain as a party to these proceedings, and, therefore, reject the
response to the main appeal lodged by that Member State. In support of that request those parties state
that although it is true that, as a Member State, the Kingdom of Spain was not required to demonstrate
an interest in order to intervene in the proceedings before the General Court on the basis of the first
paragraph of Article 40 of the Statute of the Court of Justice of the European Union, under Article 172
of the Rules of Procedure of the Court, however, any party to the case in question before the General
Court – including a Member State – should, in order to be a party to the appeal proceedings,
demonstrate an interest in that appeal being allowed or dismissed. That condition, which was
introduced at the time those rules were redrafted in 2012 should also apply to Member States.
49 By letter of 29 March 2020, the Court Registry, following the decision taken by the President of the
Court of Justice, after hearing the Judge-Rapporteur and the Advocate General, informed the parties
that their request had been rejected on the ground that, having been authorised as a Member State to
intervene at first instance, under Article 40 of the Statute of the Court of Justice, the Kingdom of Spain
was automatically a party to the appeal.
50 By letters of 16 December 2020, the Federal Republic of Germany applied, pursuant to the first
paragraph of Article 40 of the Statute of the Court of Justice of the European Union, to intervene in
support of the Commission.
51 By decision of the President of the Court of 12 January 2021, that Member State was granted leave to
intervene, in accordance with Article 129(4) of the Rules of Procedure of the Court, in order to submit
its observations at the hearing, should a hearing take place, its application to intervene having been
made after the time limit set out in Article 190(2) of those rules had expired.
52 By document lodged at the Court Registry on 12 and 14 July 2021, European Food and Others and
Viorel Micula and Others requested that the oral part of the procedure be reopened. In support of their
request they submitted, in essence, that they disagreed with the Advocate General's Opinion on two
points.
53 In the first place they submit that in point 138 of his Opinion the Advocate General incorrectly
assessed the consequences for the answer to be given to the first part of the second plea that was
advanced in Cases T-624/15 and T-694/14 of the error of law that was made, according to him, by the
General Court when it held that the State aid alleged had been granted at the date of the repeal in
breach of the BIT of the tax incentives scheme at issue. Admittedly, they submit, that error of law
would justify the setting aside of the judgment under appeal, since the right to receive that aid resulted
not from the repeal but from an arbitral award that was delivered after the accession of Romanian to
the European Union. However, contrary to the Advocate General's proposed answer, the first part of
that second plea should be upheld to the extent that it criticises the Commission for having found in the
decision at issue that the State aid in question resulted not from the arbitral award but from the
payment itself of damages granted under that award, whereas, they submit, the payment of a sum
granted on that basis does not confer any additional advantage on top of that award. The precise
identification of the State aid measure in question was also a decisive question addressed as part of the
second plea in Case T-704/15 with the result that, if the Court should follow the Advocate General's
reasoning set out in his Opinion, it would, they submit, have to refer the examination of that question
back to the General Court.
54 In the second place they submit that the Advocate General was wrong to consider, in paragraph 135 of
his Opinion, that any measure implemented after the arbitral award was delivered, by way of its
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implementation by Romania, could constitute a State aid. In fact, only that award could lead to the
grant of such an aid, since, in accordance with Article 53 of the ICSID Convention, Romania's
obligation to pay damages flowed from that award without it being necessary for the Romanian
authorities to take any additional administrative or legal steps. In particular, proceedings for
recognition of the arbitral award were a mere administrative formality which were only necessary if
that State did not comply with the award.
55 In that regard, it should be recalled that, first, the Statute of the Court of Justice of the European Union
and the Rules of Procedure of the Court make no provision for parties to submit observations in
response to the Advocate General's Opinion (judgment of 15 July 2021, Commission v Poland
(Disciplinary regime for judges), C-791/19, EU:C:2021:596, paragraph 41 and the case-law cited).
56 Secondly, under the second paragraph of Article 252 TFEU, the Advocate General, acting with
complete impartiality and independence, is to make, in open court, reasoned submissions on cases
which, in accordance with the Statute of the Court of Justice of the European Union, require the
Advocate General's involvement. The Court is not bound either by the Advocate General's conclusion
or by the reasoning which led to that conclusion. Consequently, a party's disagreement with the
Advocate General's Opinion, irrespective of the questions that he or she examines in his or her
Opinion, cannot in itself constitute grounds justifying the reopening of the oral part of the procedure
(judgment of 15 July 2021, Commission v Poland (Disciplinary regime for judges), C-791/19,
EU:C:2021:596, paragraph 42 and the case-law cited).
57 Nevertheless, the Court may at any time, after hearing the Advocate General, order the reopening of
the oral part of the procedure, in accordance with Article 83 of its Rules of Procedure, in particular if it
considers that it lacks sufficient information or where a party has, after the close of that part of the
procedure, submitted a new fact which is of such a nature as to be a decisive factor for the decision of
the Court.
58 In this instance, the Court considers, however, after hearing the Advocate General, that it has before it,
at the close of the written part of the procedure and the hearing, all the material necessary for it to give
judgment in the present case. It observes, moreover, that the requests to reopen the oral part of the
procedure made by European Food and Others and Viorel Micula and Others raise no new fact which
is of such a nature as to be a decisive factor for the decision of the Court.
59 In those circumstances, there is no need to order that the oral part of the procedure be reopened.
60 In support of its appeal the Commission, supported by the Kingdom of Spain and the intervening
parties, raises three grounds.
61 By its first ground of appeal, which has two parts, the Commission submits that the General Court
erred in law in finding that the Commission lacked competence to adopt the decision at issue. The first
part of that ground, relied on principally, alleges an infringement by the General Court of Article 108
TFEU, whilst the second part of that ground, relied on in the alternative, alleges an infringement of
Chapter 2 of Annex V to the Act of Accession.
62 By its second ground of appeal, which has two parts, the Commission submits that the General Court
erred in law in finding that EU law did not apply to the compensation granted by the arbitral award.
The first part of that ground, relied on principally, alleges an infringement by the General Court of
Article 2 of the Act of Accession and the rules of application ratione temporis of EU law, whilst the
second part of that ground, relied on in the alternative, alleges an infringement of the Europe
Agreement.
63 By its third ground of appeal, the Commission submits that the General Court erroneously interpreted
the concept of advantage and failed to examine all the grounds of the decision at issue when it
considered that the compensation in question did not constitute such an advantage.
[Page 9]
64 It is appropriate, first of all, to examine the first ground of appeal, in its first part, together with the
second ground of appeal.
Arguments of the parties
65 European Food and Others and Viorel Micula and Others submit that the line of argument advanced,
in particular, in support of the first ground of appeal, in the first part, and the second ground of appeal,
in both parts, is inadmissible, or even ineffective, for a number of reasons.
66 In the first place, the determination of the date on which the State aid in question was granted, which
is the subject, in essence, of the first and second grounds, in their first parts, concerns a finding of fact.
Consequently, it cannot be the subject of an appeal. The General Court made a sovereign finding that
the arbitral award had the aim of compensating the arbitration applicants owing to an event that
occurred before the accession of Romania to the European Union, namely the repeal by that State in
breach of the BIT of the tax incentives scheme at issue, and that that award did not produce any effect
after that accession. The General Court having thus established, as a matter of fact, that the payment of
compensation represented merely the implementation of an earlier right, that payment could not
constitute an advantage covered by Article 107(1) TFEU, which suffices to justify the annulment of the
decision at issue.
67 Furthermore, according to European Food and Others, the Commission's submission regarding the
date on which the State aid in question was granted is insufficiently precise. In particular, the appeal
failed to indicate which grounds of the judgment under appeal were vitiated by an error of law. It also
failed to set out the extent to which that judgment incorrectly interpreted or applied the Court of
Justice's case-law and moreover did not indicate the facts that were the subject of an allegedly
incorrect classification.
68 In the second place, since the State aid identified in the decision at issue was constituted neither by the
right to the compensation in question nor yet by the arbitral award, but by the payment of that
compensation, well after Romania's accession to the European Union, the arguments by which the
Commission submits, in particular in support of its second ground of appeal, in the second part, that it
is competent to examine a measure capable of constituting State aid granted before that accession must
be dismissed as ineffective. The same applies to the argument by which the Commission submits, in
support of its first ground of appeal, in the first part, that the State aid in question flows from the
conversion of that award into an enforceable legal right or the pronouncement of that award. To uphold
those arguments would mean that the Commission was wrong in that decision to find that that aid was
granted by the payment of the compensation. Any attempt by the Commission to amend or supplement
ex post its reasoning in that decision is inadmissible.
69 In the third place, the line of argument by which the Commission relies, in support of the second part
of its second ground of appeal, on a breach of the Europe Agreement must be rejected as inadmissible
or ineffective. First, by that argument, the Commission necessarily accepts that the General Court
correctly found that any grant of possible State aid took place, in this case, before Romania's accession
to the European Union, which contradicts the wording of the decision at issue. Second, since that
decision was adopted on the basis of Articles 107 and 108 TFEU, the Commission cannot, at the stage
of this appeal, rely on the Europe Agreement. The EU judicature cannot substitute a different legal
base for the legal base of that decision.
70 The Commission submits that the first ground of appeal, in the first part, and the second ground of
appeal, in both parts, are admissible.
Findings of the Court
71 In the first place, it should be recalled that it is apparent from Article 256(1) TFEU and the first
paragraph of Article 58 of the Statute of the Court of Justice of the European Union that an appeal is to
be limited to points of law and that the General Court therefore has exclusive jurisdiction to find and
appraise the relevant facts and to assess the evidence. The assessment of the facts and evidence does
[Page 10]
not, save where the facts or evidence are distorted, constitute a point of law, which is subject, as such,
to review by the Court of Justice on appeal (judgment of 2 March 2021, Commission v Italy and
Others, C-425/19 P, EU:C:2021:154, paragraph 52 and the case-law cited).
72 However, where the General Court has found or appraised the facts, the Court of Justice has
jurisdiction to carry out a review, provided that the General Court has defined their legal nature and
determined the legal consequences. The jurisdiction of the Court of Justice to review extends, inter
alia, to the question whether the General Court has taken the right legal criteria as the basis for its
appraisal of the facts (see to that effect, judgment of 2 March 2021, Commission v Italy and Others,
C-425/19 P, EU:C:2021:154, paragraph 53 and the case-law cited).
73 In the present case, it must be observed that the first parts of the first and second grounds of appeal
raise the question whether, in the event that, as in this case, an arbitral award granted damages by way
of compensation for harm suffered owing to the repeal in breach of a BIT of a tax incentives scheme, a
State aid is 'granted', within the meaning of Article 107(1) TFEU, on the date on which that
compensation is actually paid in implementation of that award, as the Commission submits, on the
ground that the right to compensation definitively materialises on the date on which that award
becomes enforceable in national law; or, on the date of that repeal, as European Food and Others and
Viorel Micula and Others submit on the ground, as the General Court held in the judgment under
appeal, the right to compensation arose at that latter date.
74 Such a question is manifestly a question of law as it involves the determination of the date on which
the aid was 'granted' within the meaning of Article 107(1) TFEU and the review of whether the
General Court correctly interpreted and applied Article 107(1) TFEU, as well as the correct legal
classification of the facts in order to define the date on which the aid was ‘granted', within the meaning
of that provision.
75 In addition, with regard to allegation of the imprecise nature of the Commission's argument on this
point, it must be recalled that it follows from the second subparagraph of Article 256(1) TFEU and the
first paragraph of Article 58 of the Statute of the Court of Justice of the European Union, as well as
from Article 168(1)(d) of the Rules of Procedure of the Court of Justice, that an appeal must indicate
precisely the contested elements of the judgment which the appellant seeks to have set aside and also
the legal arguments specifically advanced in support of the appeal, failing which the appeal or the
ground of appeal in question will be dismissed as inadmissible (judgment of 2 March 2021,
Commission v Italy and Others, C-425/19 P, EU:C:2021:154, paragraph 55 and the case-law cited).
76 In the present case, it suffices in that respect to observe that the Commission indicated in its appeal
that it challenged, by its first and second grounds of appeal, paragraphs 66 to 80 and 83 to 88 of the
judgment under appeal, and that to that end it advanced a clear and detailed submission setting out the
reasons why those paragraphs were, according to it, vitiated by errors of law.
77 In the second place, as regards the criticism that the Commission is attempting by its appeal to amend
or supplement the decision at issue as to the nature of the State aid it covered, it should be recalled that,
in accordance with the case-law of the Court of Justice cited in paragraph 75 of this judgment, a
ground of appeal must seek not the annulment of the decision challenged at first instance but rather to
have the judgment under appeal set aside by advancing a line of argument specifically identifying the
error of law allegedly vitiating that judgment, failing which it is inadmissible. Accordingly, an
appellant is entitled to lodge an appeal relying on grounds which arise from the judgment under appeal
itself and seek to criticise, in law, its correctness (judgment of 4 March 2021, Commission v Fútbol
Club Barcelona, C-362/19 P, EU:C:2021:169, paragraph 47 and the case-law cited).
78 In the present case, as stated in paragraph 73 of this judgment, the Commission seeks, by its appeal, in
particular by its first and second grounds of appeal, in their first parts, to call into question the grounds
on which the General Court found in the judgment under appeal that the State aid covered by the
decision at issue had been granted at the date on which Romania repealed, purportedly in breach of the
BIT, the tax incentives scheme at issue, before the accession of that State to the European Union, with
the result that that institution lacked competence to adopt that decision under Article 108 TFEU.
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79 Such a line of argument, which concerns the grounds of that judgment, is admissible at the appeal
stage, whatever the reasoning of the decision at issue and, in particular, the precise nature of the
measure that was considered by the Commission in that decision to be ‘State aid' within the meaning
of Article 107(1) TFEU.
80 However, it should be noted in that respect that, since the Court of Justice's jurisdiction on an appeal is
limited to assessing the findings of law on the pleas argued at first instance (judgment of 4 March
2021, Commission v Fútbol Club Barcelona, C-362/19 P, EU:C:2021:169, paragraph 47 and the case-
law cited), it cannot rule, in the context of this appeal, on grounds or arguments which were not
examined by the General Court, in particular those concerning whether the measure in question
constituted, in substance, ‘State aid' within the meaning of Article 107(1) TFEU.
81 Lastly, in the third place, the line of argument alleging a breach of the Europe Agreement, which is the
subject of the second ground of appeal, in its second part, must, in accordance with the case-law
recalled in paragraph 77 of this judgment, be regarded as admissible. By that ground, the Commission
submits that in paragraph 87 of the judgment under appeal the General Court erred in law when it
rejected, in breach of Articles 267 and 344 TFEU, the relevance of the judgment of 6 March 2018,
Achmea (C-284/16, EU:C:2018:158) on the ground that the arbitral tribunal was not required to apply
EU law to the facts before it which arose before Romania's accession to the European Union. It is, in
that regard, irrelevant whether that line of argument lacks, as the case may be, any relationship with the
findings made by the Commission in the decision at issue, since that decision is not, as recalled in
paragraph 77 of this judgment, the subject of this appeal.
82 Consequently, the first part of the first ground of appeal and both parts of the second ground of appeal
are admissible.
Arguments of the parties
The first part of the first ground of appeal
83 By the first part of its first ground of appeal, the Commission submits that the General Court wrongly
held, in paragraphs 68 to 80 and 86 of the judgment under appeal, that the arbitration applicants' right
to compensation granted by the arbitral award was conferred on them on 22 February 2005, namely
before Romania's accession to the European Union, when that State repealed the tax incentives scheme
at issue and that therefore the repeal of that scheme constitutes the State aid measure at issue, whereas
it is the payment of that compensation which constitutes that aid.
84 It follows that the General Court made an error of law consisting of the misinterpretation and
misapplication of the Court's case-law concerning the date on which State aid is granted for the
purposes of the exercise of the Commission's competence under Article 108 TFEU. That error stems
from another error of law consisting of an incorrect legal classification of the facts concerning the
measure by which Romania granted the alleged State aid at issue.
85 The question whether the Commission was competent to adopt the decision at issue under Article 108
TFEU depends on the date on which Romania adopted the measure capable of constituting State aid. In
that regard, it is clear from the Court's case-law following the judgment of 21 March 2013,
Magdeburger Mühlenwerke (C-129/12, EU:C:2013:200, paragraphs 40 and 41), that the existence of a
legal entitlement on the basis of which immediate payment of an aid may be demanded constitutes the
legal criteria for classification of a State aid.
86 In the present case, however, the arbitration applicants obtained the right to the compensation in
question only when the arbitration award became enforceable under national law. The unconditional
right to the payment of damages granted as a result of the repeal of the tax incentives scheme at issue
flowed from that award, in conjunction with the national law that obliged Romania to implement it.
Consequently, the decision at issue was correct in regarding Romania's payment, whether voluntarily
made or enforced, of that compensation as constituting a State aid. Since that State aid was granted
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after Romania's accession to the European Union, the Commission was competent to adopt that
decision.
87 In any event, account must be taken of the need to ensure that the prohibition of State aid laid down in
Article 64(1)(iii) of the Europe Agreement and Article 107(1) TFEU is not circumvented by means of
an arbitration clause contained in a BIT that is binding on Member States. The General Court failed to
have regard to that context in the judgment under appeal.
88 European Food and Others and Viorel Micula and Others submit that the General Court correctly
applied the principles relating to the date on which State aid is granted, as derived from the case-law of
the Court of Justice.
89 They submit that it is apparent from the judgment of 21 March 2013, Magdeburger Mühlenwerke
(C-129/12, EU:C:2013:200, paragraphs 40 and 41), that State aid must be regarded as granted on the
date on which the right to receive it is conferred on the beneficiary under the applicable national rules.
As regards damages, it must be held that the right to compensation for damage arises on the date on
which the event giving rise to that damage occurred, any subsequent event being incidental and not
altering the nature or value of the entitlements established on the date of the event giving rise to the
damage.
90 The General Court was therefore, they submit, fully entitled to find, in paragraph 75 of the judgment
under appeal, that the right to compensation, confirmed by the arbitral award, arose on 22 February
2005, when Romania repealed the tax incentives scheme at issue, in breach of the BIT, and that,
therefore, the Commission was not competent to adopt the decision at issue under Article 108 TFEU.
In making that finding, the General Court held, rightly, that the Commission had wrongly concluded
that the alleged State aid had been granted through payment of the compensation granted by that
award.
91 In particular, they submit that the date on which the arbitral award was integrated into the national
legal order is irrelevant. That award did not give rise to rights which did not exist before Romania's
accession to the European Union, since a decision, be it judicial or arbitral, awarding damages for harm
caused by an unlawful act did not constitute the right, but was declaratory of rights and obligations
arising when that unlawful act was committed. In addition, under Article 54 of the ICSID Convention,
Romania is required to recognise and enforce the arbitral award, irrespective of the status of that award
under Romanian procedural law.
92 The General Court was therefore correct, they submit, to hold that the implementation of the arbitral
award represents only the enforcement of a right which arose on 22 February 2005, since neither that
award nor its registration in Romania, nor its subsequent enforcement conferred on the arbitration
applicants any additional advantage over and above the rights which they already enjoyed on that date.
93 Moreover, it was not the repeal of the tax incentives scheme at issue, but the infringement of the BIT
by Romania that conferred on arbitration applicants the right to receive compensation the payment of
which was classified by the decision at issue as constituting State aid. The arbitral tribunal could thus
have definitively held Romania liable for that infringement before the accession of that State to the
European Union. Neither the arbitration award nor the calculation of the exact amount of damages
awarded is therefore relevant for the purposes of determining the date on which the right to receive
State aid is conferred on its beneficiaries.
The second ground of appeal
94 By the first part of the second ground of appeal, the Commission submits that, by holding, in
paragraphs 66, 67 and 80 to 88 of the judgment under appeal, that EU law was not applicable ratione
temporis to the compensation granted by the arbitral award, on the ground that all the events giving rise
to that compensation occurred before Romania's accession to the European Union, the General Court
infringed Article 2 of the Act of Accession, read in the light of the case-law of the Court of Justice, as
it emerges, inter alia, from the judgment of 12 September 2013, Kuso, (C-614/11, EU:C:2013:544,
paragraph 25) according to which EU law applies to the future effects of a situation which arose under
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the old rules. In particular, from the date of accession of a new Member State, EU law applies to all
existing situations.
95 In the present case, the Commission submits, since the arbitral proceedings were pending on the date
of Romania's accession to the European Union, the arbitral tribunal's decision-making process was
ongoing at that date. Furthermore, according to the findings made by that tribunal, the arbitration
applicants suffered gradually, over the period between 2005 and 2011, the harm for which they sought
compensation.
96 It follows that the delivery of the arbitral award entailed the application of EU law, since it created
rights which did not exist before Romania's accession to the European Union and it determined, by
means of a complex economic assessment, the amount of compensation. The effects of that award thus
constitute the future effects of a situation which arose before accession. The Commission submits that
that award cannot therefore be regarded as recognition of a right which arose on the date on which
Romania repealed the tax incentives scheme at issue.
97 On the contrary, the repeal of that regime and the arbitral award are two separate legal acts, the first
ensuring compliance with Article 64(1)(iii) of the Europe Agreement and the second granting
compensation for the repeal of a State aid scheme incompatible with that provision. That situation is
comparable to that examined in the case which gave rise to the judgment of 29 June 2004, Commission
v Council (C-110/02, EU:C:2004:395), in which the Court held that EU law prohibits the
circumvention of a Commission decision declaring State aid incompatible with the internal market by
means of a second legal act granting compensation intended to compensate for the repayments which
the beneficiaries of that State aid are obliged to make pursuant to that decision.
98 By the second part of the second ground of appeal, the Commission submits that, in any event, the
General Court, by holding that EU law was not applicable ratione temporis to the compensation
awarded by the arbitral award, infringed the Europe Agreement as that agreement, which is part of EU
law, was applicable to all events prior to the accession which gave rise to that compensation.
Article 64(1)(iii) of that agreement prohibited Romania from granting State aid which had not been
authorised during the period preceding its accession to the European Union.
99 According to the Commission, that error led the General Court to make another error of law, in
paragraph 87 of the judgment under appeal, when it held that the situation at issue in the present case
was, for that reason, different from that which gave rise to the judgment of 6 March 2018, Achmea
(C-284/16, EU:C:2018:158). The arbitral tribunal itself acknowledged that the European Agreement
laid down rules of law which it had to apply to the dispute before it. The present case is therefore a
case in which private arbitration replaces the EU judicial system for resolving disputes in the field of
EU law. Consequently, the General Court infringed Articles 267 and 344 TFEU.
100 European Food and Others and Viorel Micula and Others submit that the first part of the second
ground of appeal is based, in its entirety, on the erroneous assertion that the right to compensation,
which arose when the BIT was infringed, produces future effects after Romania's accession to the
European Union.
101 They submit that it is apparent from the case-law of the Court, in particular from the judgments of
15 June 1999, Andersson and Wåkerås-Andersson (C-321/97, EU:C:1999:307, paragraph 31), and of
10 January 2006, Ynos (C-302/04, EU:C:2006:9, paragraph 36), that EU law, in particular Articles 107
and 108 TFEU, does not apply to aid measures granted before Romania's accession to the European
Union. The limited circumstances in which the Commission may examine such aid measures derive
from the provisions of the relevant acts of accession and not from a general principle of EU law.
102 In the present case, the arbitral award did not create rights which did not exist before Romania's
accession to the European Union, but should be understood as a declaration that rights which existed
before Romania's accession were infringed. Nor did payment of damages produce future effects, but
represented merely the enforcement of the right to compensation, which was only confirmed and
quantified by the arbitral award.
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103 The right to the compensation at issue arose, they argue, from Romania's infringement of the BIT on
account of the way in which Romania repealed, before its accession to the European Union, the tax
incentives scheme at issue. All the events necessary to establish Romania's liability thus occurred
before accession. It is irrelevant in that regard that the calculation of the amount of damages required a
complex economic analysis.
104 The infringement of the BIT and the award of compensation do not therefore constitute two separate
legal acts. Consequently, no analogy may be drawn with the case giving rise to the judgment of 29 June
2004, Commission v Council (C-110/02, EU:C:2004:395), in which the Member State concerned had,
first, laid down an aid scheme which was repealed following a Commission decision declaring it
incompatible with the internal market and requiring that Member State to recover the individual aids
granted under that scheme and, second, granted to the beneficiaries of those aids new aid of an
equivalent amount intended to neutralise the consequences of the reimbursements that they were
required to make. By contrast, the compensation granted by the arbitral award is intended to
compensate for damage suffered as a result of the infringement of the BIT. Furthermore, since that
award was adopted by an independent arbitral tribunal, it is not an act attributable to the Romanian
State.
105 In any event, they submit, the Commission is not competent to require recovery of compensation
granted by the arbitral award in so far as that award seeks to make good damage suffered before
Romania's accession to the European Union. If the tax incentives scheme at issue had not been
repealed, the aid granted under that scheme during that period would have escaped the Commission's
supervisory powers under Article 108 TFEU.
106 As regards the second part of the second ground of appeal, European Food and Others and Viorel
Micula and Others submit that the General Court did not err in its interpretation or application of the
Europe Agreement. It is true that that agreement, since it constitutes an international agreement
concluded by the European Union, its Member States and Romania, forms an integral part of the EU
legal order. However, they submit, prior to Romania's accession to the European Union, such an
agreement did not form part of EU law for that State; it falls within the scope of EU law only with
regard to the European Union itself and the Member States.
107 Furthermore, the General Court did not infringe Articles 267 and 344 TFEU when it held, in
paragraph 87 of the judgment under appeal, that the findings made by the Court of Justice in the
judgment of 6 March 2018, Achmea (C-284/16, EU:C:2018:158), did not apply to the present case.
That judgment concerns the situation in which a Member State agrees to remove disputes which
concern the interpretation and application of EU law from the judicial system of the European Union.
However, that is not the case here, since, first, Romania did not have the status of a Member State
when the action was brought before the arbitral tribunal and, secondly, the Europe Agreement did not
fall within the scope of EU law for Romania.
108 By its first and second grounds of appeal, in their first parts, the Commission submits, in essence, that
the General Court erred in law in holding that it lacked competence under Article 108 TFEU to adopt
the decision at issue. By that decision, the Commission considered that the payment of damages
awarded by the arbitral tribunal, in its award delivered after Romania's accession to the European
Union, in compensation for the damage which the arbitration applicants claim to have suffered as a
result of the repeal by that State – prior to that accession – of the tax incentives scheme at issue,
allegedly in breach of the BIT, constitutes State aid, within the meaning of Article 107(1) TFEU, which
is unlawful and incompatible with the internal market.
109 It should be recalled that Article 108 TFEU establishes a system of prior control of measures that may
constitute 'State aid' within the meaning of Article 107(1) TFEU. In particular, Article 108(3) TFEU
establishes a prior control of plans to grant new aid. The aim of that system of prior control is therefore
that only State aid compatible with the internal market, within the meaning of Article 107(3) TFEU, is
implemented (see, to that effect, judgment of 3 March 2020, Tesco-Global Áruházak, C-323/18,
EU:C:2020:140, paragraph 31 and the case-law cited).
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110 The notification requirement is one of the fundamental features of that system of control. Within that
system, Member States are under an obligation, first, to notify to the Commission each measure
intended to grant new ‘State aid' or to alter ‘State aid', within the meaning of Article 107(1) TFEU,
and, second, not to implement such a measure, in accordance with Article 108(3) TFEU, until that EU
institution has taken a final decision on that measure (judgment of 24 November 2020, Viasat
Broadcasting UK, C-445/19, EU:C:2020:952, paragraph 19 and the case-law cited).
111 That obligation has direct effect on all the authorities of the Member States (see, to that effect,
judgment of 5 March 2019, Eesti Pagar, C-349/17, EU:C:2019:172, paragraphs 88 and 90).
112 As the General Court correctly pointed out, in paragraphs 66, 67 and 79 of the judgment under appeal,
EU law, and Article 108 TFEU in particular, became applicable in Romania in accordance with
Article 2 of the Act of Accession with effect from 1 January 2007, the date on which that State acceded
to the European Union, under the conditions laid down in that act (see, by analogy, judgment of
29 November 2012, Kremikovtzi, C-262/11, EU:C:2012:760, paragraph 50).
113 It follows that, as the General Court also noted, in paragraphs 67 and 79 of the judgment under appeal,
it was from that date that the Commission acquired the power enabling it to review, under Article 108
TFEU, measures taken by that Member State which might constitute ‘State aid' within the meaning of
Article 107(1) TFEU.
114 On that basis the General Court correctly concluded, in essence, in paragraph 68 of that judgment,
that, in order to determine whether the Commission was competent to adopt the decision at issue under
Article 108 TFEU, it was necessary to define the date on which the measure that, according to that
decision, gave rise to ‘State aid', within the meaning of Article 107(1) TFEU, was adopted.
115 According to the settled case-law of the Court of Justice, to which the General Court refers in
paragraph 69 of that judgment, State aid must be regarded as being ‘granted', within the meaning of
Article 107(1) TFEU, on the date on which the right to receive it is conferred on the beneficiary under
the applicable national legislation (see, to that effect, the judgments of 21 March 2013, Magdeburger
Mühlenwerke,C-129/12, EU:C:2013:200, paragraph 40; of 6 July 2017, Nerea, C-245/16,
EU:C:2017:521, paragraph 32; and of 19 December 2019, Arriva Italia and Others, C-385/18,
EU:C:2019:1121, paragraph 36).
116 In the present case, as is apparent from the judgment under appeal, in particular from paragraphs 74 to
78 and 80 thereof, the General Court considered that the right to receive the compensation granted by
the arbitral award, the payment of which, according to the decision at issue, gave rise to the grant of
State aid, arose and began to produce its effects when Romania repealed, allegedly in breach of the
BIT, the tax incentives scheme at issue. According to the General Court, that award is only an ancillary
element of that compensation, since, by merely determining the exact damage suffered by the
arbitration applicants as a result of that repeal, it constitutes the mere recognition of a right which arose
at the time of that repeal, whereas the payments made subsequently represent only the enforcement of
that right.
117 In that regard, it should be noted that, admittedly, as the General Court found, in paragraphs 72 and 73
of the judgment under appeal, the compensation granted by the arbitral award, since it is intended to
compensate for the damage which the arbitration applicants claim to have suffered as a result of the
repeal by Romania of the tax incentives scheme at issue, allegedly in breach of the BIT, has its origin
in that repeal, which constitutes the event giving rise to the damage for which that compensation was
granted.
118 It is also true that it cannot be ruled out that, according to the principles deriving from national law on
civil liability, such a right to compensation arises on the date of the repeal of that system, as the
General Court held in paragraphs 74 and 75 of the judgment under appeal.
119 It should, however, be recalled that the objective of the rules established by the FEU Treaty in relation
to State aid is to preserve competition in the internal market (judgment of 6 November 2018, Scuola
Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and
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Commission v Ferracci, C-622/16 P to C-624/16 P, EU:C:2018:873, paragraph 43 and the case-law
cited).
120 To that end, the FEU Treaty, in particular Article 108 TFEU, conferred on the Commission, as recalled
in paragraphs 109 and 110 of this judgment, the power to determine whether a measure constitutes
'State aid' within the meaning of Article 107(1) TFEU and, therefore, conferred on it the power to
ensure that measures meeting the conditions laid down in that provision are not implemented by the
Member States or are implemented by them only after such measures have been declared compatible
with the internal market.
121 In that regard, it is clear from the case-law that classification as ‘State aid' within the meaning of
Article 107(1) TFEU requires four conditions to be satisfied, namely that there be intervention by the
State or through State resources, that the intervention be liable to affect trade between Member States,
that it confer a selective advantage on the beneficiary, and that it distort or threaten to distort
competition. Furthermore, that advantage must be attributable to the State (see, to that effect, judgment
of 3 March 2021, Poste Italiane and Agenzia delle entrate–Riscossione, C-434/19 and C-435/19,
EU:C:2021:162, paragraphs 37 and 39 and the case-law cited).
122 It should also be borne in mind that the concept of ‘advantage', which is intrinsic to the classification
of a measure as State aid, is an objective one, irrespective of the motives of the persons responsible for
the measure in question. Accordingly, the nature of the objectives pursued by State measures and their
grounds of justification have no bearing whatsoever on whether such measures are to be classified as
State aid. Article 107(1) TFEU does not distinguish between the causes or the objectives of State aid,
but defines them in relation to their effects (judgment of 4 March 2021, Commission v Fútbol Club
Barcelona, C-362/19 P, EU:C:2021:169, paragraph 61 and the case-law cited).
123 In the light of those considerations, it appears that, as the Advocate General observed in point 125 of
his Opinion, the decisive factor for establishing the date on which the right to receive State aid was
conferred on its beneficiaries by a particular measure is the acquisition by those beneficiaries of a
definitive right to receive that aid and to the corresponding commitment, by the State, to grant that aid.
It is at that date that such a measure is liable to distort competition and affect trade between Member
States, within the meaning of Article 107(1) TFEU.
124 In the present case, it must be noted that the right to compensation for the loss which the arbitration
applicants allege to have suffered as a result of the repeal, allegedly in breach of the BIT, of the tax
incentives scheme at issue was granted only by the arbitration award. It was only upon the conclusion
of the arbitral proceedings brought for that purpose by the arbitration parties, on the basis of the
arbitration clause in Article 7 of the BIT, that the arbitration applicants were able to obtain actual
payment of that compensation.
125 It follows that, even if, as the General Court pointed out on numerous occasions in the judgment under
appeal, the repeal, allegedly in breach of the BIT, of the tax incentives scheme at issue constitutes the
event giving rise to the damage, the right to the compensation in question was granted solely by the
arbitral award issued by that court, which, having upheld the claim brought by the arbitration
applicants, not only found the existence of that right, but also quantified the amount thereof.
126 It follows that the General Court erred in law when it held, in paragraphs 75 and 78 of the judgment
under appeal, that the State aid covered by the decision at issue was granted on the date of repeal of the
tax incentives scheme at issue.
127 Consequently, the General Court also erred in law when it held, in paragraphs 79 and 92 of the
judgment under appeal, that the Commission lacked competence to adopt the decision at issue under
Article 108 TFEU.
128 None of the arguments put forward by European Food and Others and Viorel Micula and Others is
capable of calling that assessment into question.
129 In the first place, the argument that the arbitral tribunal, which had been seised before Romania's
accession to the European Union, could have delivered its ruling before that accession is purely
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speculative and must therefore be rejected.
130 In the second place, as regards the argument that the arbitral award, unlike the situation at issue in the
judgment of 29 June 2004, Commission v Council (C-110/02, EU:C:2004:395), is not intended to re-
establish a State aid scheme previously declared by the Commission to be incompatible with the
internal market pursuant to Article 108(2) TFEU, but grants damages in compensation for loss suffered
as a result of the alleged infringement of the BIT and is not, moreover, attributable to the State, with
the result that it does not fall within the scope of Article 107(1) TFEU, that argument must be rejected
as being irrelevant for the purposes of the examination of this appeal.
131 As is apparent from paragraph 80 of this judgment, the question whether the compensation granted by
that award may constitute ‘State aid' within the meaning of Article 107(1) TFEU, in particular in the
light of the case-law stemming from the judgment of 27 September 1988, Asteris and Others (106/87
to 120/87, EU:C:1988:457, paragraphs 23 and 24), according to which such aid is of a fundamentally
different legal nature from that of the damages which national authorities may be ordered to pay to
individuals in compensation for damage they have caused to those individuals, is not the subject matter
of the present appeal and is therefore outside the Court's jurisdiction in this context.
132 Moreover, the power held by the Commission under Article 108 TFEU cannot in any case depend on
the outcome of the examination of whether the compensation at issue is capable of constituting ‘State
aid', within the meaning of Article 107(1) TFEU, since the prior control by the Commission pursuant
to Article 108 TFEU is intended, inter alia, as is apparent from paragraphs 109 and 120 of this
judgment, to determine whether that is the case.
133 In the third place, as regards the argument that the compensation awarded by the arbitral award seeks,
in part, as the General Court noted in paragraphs 89 and 90 of the judgment under appeal, to make
good the damage which the arbitration applicants claim to have suffered during a period prior to
Romania's accession to the European Union, that argument must also be rejected as irrelevant.
134 That fact, contrary to what the General Court held in paragraph 91 of that judgment, is not such as to
call into question the Commission's competence to adopt the decision at issue under Article 108 TFEU,
since, as is apparent from paragraphs 124 to 127 of this judgment, the right to that compensation was
actually granted after that accession, by the adoption of the arbitral award.
135 In that respect it is irrelevant that the Commission would not have been competent under that
provision to monitor, before Romania's accession to the European Union, the tax incentives scheme at
issue if it had not been repealed by Romania. It suffices to note in that regard that, by the decision at
issue, the Commission examined, in the light of the rules of the FEU Treaty on State aid, not that tax
incentives scheme, which had been repealed before that accession and was moreover no longer in
force, as European Food and Others and Viorel Micula and Others themselves point out, but the
payment of damages made pursuant to the arbitral award issued after that accession.
136 It follows that the judgment under appeal is vitiated by errors of law as regards the determination, first,
of the date on which the State aid referred to in the decision at issue was granted and, second, the
Commission's competence to adopt that decision under Article 108 TFEU.
137 Moreover, the General Court also erred in law when it held, in paragraph 87 of the judgment under
appeal, that the judgment of 6 March 2018, Achmea (C-284/16, EU:C:2018:158), is irrelevant for the
present case.
138 It should be recalled that in that judgment the Court held that Articles 267 and 344 TFEU must be
interpreted as precluding a provision contained in an international agreement concluded between two
Member States under which an investor from one of those Member States may, in the event of a
dispute concerning investments in the other Member State, bring proceedings against the latter
Member State before an arbitral tribunal whose jurisdiction that Member State has undertaken to
accept (judgment of 6 March 2018, Achmea, C-284/16, EU:C:2018:158, paragraph 60).
139 By concluding such an agreement, the Member States which are parties to it agree to remove from the
jurisdiction of their own courts and, therefore, from the system of judicial remedies which the second
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subparagraph of Article 19(1) TEU requires them to establish in the fields covered by EU law disputes
which may concern the application or interpretation of EU law. Such an agreement is, therefore,
capable of preventing those disputes from being resolved in a manner that guarantees the full
effectiveness of that law (judgment of 26 October 2021, PL Holdings, C-109/20, EU:C:2021:875,
paragraph 45 and the case-law cited).
140 In the present case, with effect from the date of Romania's accession to the European Union, EU law,
including Articles 107 and 108 TFEU, was applicable to that Member State. As is apparent from the
information in the case file referred to in paragraph 27 above, it is common ground that the
compensation sought by the arbitration applicants did not relate exclusively to the damage allegedly
suffered before that date of accession, with the result that the dispute brought before the arbitral
tribunal cannot be regarded as being confined in all respects to a period during which Romania, which
had not yet acceded to the European Union, was not yet bound by the rules and principles recalled in
paragraphs 138 and 139 above.
141 It is common ground that the arbitral tribunal before which that dispute was brought does not form
part of the EU judicial system which the second subparagraph of Article 19(1) TEU requires the
Member States to establish in fields covered by EU law, which, with effect from Romania's accession
to the European Union, replaced the mechanism for resolving disputes that might concern the
interpretation or application of EU law.
142 First, that arbitral tribunal is not a ‘court or tribunal of a Member State' within the meaning of
Article 267 TFEU and, second, the arbitral award delivered by that court is not subject, in accordance
with Articles 53 and 54 of the ICSID Convention, to any review by a court of a Member State as to its
compliance with EU law.
143 Contrary to the submissions made at the hearing by European Food and Others and Viorel Micula and
Others, that assessment cannot be called into question by the fact that Romania had consented to the
possibility of litigation being brought against it in the context of the arbitration procedure provided for
by the BIT.
144 Such consent, unlike that which would have been given in commercial arbitration proceedings, does
not originate in a specific agreement reflecting the freely expressed wishes of the parties concerned,
but derives from a treaty concluded between two States in the context of which they have, generally
and in advance, agreed to exclude from the jurisdiction of their own courts disputes which may
concern the interpretation or application of EU law in favour of arbitration proceedings (see, to that
effect, judgments of 6 March 2018, Achmea, C-284/16, EU:C:2018:158, paragraphs 55 and 56, and of
2 September 2021, Republic of Moldova, C-741/19, EU:C:2021:655, paragraphs 59 and 60).
145 In those circumstances, since, with effect from Romania's accession to the European Union, the
system of judicial remedies provided for by the EU and FEU Treaties replaced that arbitration
procedure, the consent given to that effect by Romania, from that time onwards, lacked any force.
146 In the light of all the foregoing considerations, the first ground of appeal, in its first part, and the
second ground, in both parts, must be upheld, without it being necessary to rule either on the other
arguments put forward in that context or the second part of the first ground of appeal.
147 As the General Court has, by the judgment under appeal, annulled the decision at issue, as stated in
paragraphs 36 to 38 of this judgment, on the sole ground, in essence, that the Commission lacked
competence to adopt that decision under Article 108 TFEU because EU law was not applicable ratione
temporis to the compensation granted by the arbitral award, the errors of law, as set out in
paragraphs 126, 127 and 136 of this judgment, which vitiate that reasoning justify in themselves the
setting aside of the judgment under appeal in its entirety.
148 In those circumstances, the judgment under appeal must be set aside without there being any need to
examine either the third ground of the main appeal or the cross-appeal; the latter, by which the
Kingdom of Spain alleges, first, infringement of Article 19 TEU and Articles 267 and 344 TFEU and,
second, the inadmissibility of the action at first instance, having become devoid of purpose (see, by
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analogy, judgment of 22 April 2008, Commission v Salzgitter, C-408/04 P, C-262/04, EU:C:2008:236,
paragraph 17).
149 In accordance with the second sentence of the first paragraph of Article 61 of the Statute of the Court
of Justice of the European Union, if the decision of the General Court is set aside, the Court of Justice
may itself give final judgment in the matter, where the state of the proceedings so permits.
150 In the present case that is so for the first part of the first plea in Case T-704/15, alleging that the
Commission lacked competence to adopt the decision at issue under Article 108 TFEU, and the first
part of the second plea in Cases T-624/15 and T-694/15, alleging that there was no advantage within
the meaning of Article 107(1) TFEU conferred by the payment of damages, in so far as that part
partially seeks to call into question that competence on the ground that the alleged advantage was
granted before Romania's accession to the European Union.
151 For the reasons set out in paragraphs 123 to 127 above, the Commission is competent to adopt the
decision at issue under Article 108 TFEU, since the entitlement to the State aid referred to in that
decision was granted by the arbitral award after Romania's accession to the European Union.
152 It is irrelevant in that respect that Article 1 of the decision at issue, as European Food and Others and
Viorel Micula and Others have pointed out, classifies as ‘State aid', within the meaning of
Article 107(1) TFEU, not the entitlement to compensation arising from the grant of the arbitral award,
as recitals 137 and 144 of that decision might in their view suggest, but the payment of that
compensation. Those grounds do not affect the date of delivery of that award and, therefore, cannot call
into question the Commission's competence to adopt that decision under Article 108 TFEU.
153 It is necessary therefore to reject the first part of the first pleas raised in Case T-704/15 and the first
part of the second plea in Cases T-624/15 and T-694/15, in so far as they seek to call into question the
Commission's competence to adopt the decision at issue under Article 108 TFEU.
154 By contrast, the General Court did not examine the other arguments, parts and pleas relied on by
European Food and Others and Viorel Micula and Others in support of their actions, which concern the
merits of the decision at issue, in particular the question whether the measure referred to in that
decision satisfies, from a substantive point of view, the conditions laid down in Article 107(1) TFEU.
Examination of that part of the action involves complex assessments of fact, in respect of which the
Court does not have all the necessary facts (see, by analogy, judgment of 16 September 2021,
Commission v Belgium and Magnetrol International, C-337/19 P, EU:C:2021:741, paragraph 170).
155 Consequently, the Court considers that, as regards those other arguments, parts and pleas, the state of
the proceedings does not permit final judgment to be given and that the case should therefore be
referred back to the General Court to give judgment on them.
156 Since the case is to be referred back to the General Court, the costs relating to the present appeal
proceedings must be reserved.
On those grounds, the Court (Grand Chamber) hereby:
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| Lenaerts | Arabadjiev | Prechal |
| Jürimäe | Lycourgos | Regan |
| Rodin | Jarukaitis | Ilešič |
| Biltgen | Piçarra | |
| Rossi | Kumin |
Delivered in open court in Luxembourg on 25 January 2022.
| A. Calot Escobar | K. Lenaerts |
| Registrar | President |
* Language of the case: English.