According to Advocate General Szpunar, the General Court erred in law in concluding that the Commission was not competent to examine, in the light of the law on State aid, compensation paid by Romania following an arbitral award

(Source: Court of Justice of the EU)

Arbitration proceedings initiated on the basis of a bilateral investment treaty concluded between a
Member State and a third State before the accession to the European Union of that third State,
party to the arbitration, are not capable of adversely affecting the autonomy of EU law

In 1998, the Romanian authorities adopted an emergency government ordinance (EGO), which
granted investors in disfavoured regions certain tax incentives for a period of ten years.
In the process of preparing for accession to the European Union, Romania terminated that
incentive scheme in 2005, that is to say, three years earlier than laid down in legislation.

The Micula parties, Swedish investors residing in Romania, are majority shareholders of the
European Food and Drinks Group, a recipient of those incentives. In accordance with the
provisions of a bilateral investment treaty concluded in 2002 between Sweden and Romania on the
Promotion and Reciprocal Protection of Investments (BIT), Ioan and Viorel Micula and other
applicants requested the establishment of an arbitral tribunal in order to obtain compensation for
the damage resulting from the revocation of the incentives laid down in the ordinance. In 2013, the
arbitral tribunal concluded that Romania failed to ensure fair and equitable treatment of the
investments and awarded the applicants approximately € 180 million in compensation.

Full Press Release – 118/2021 : 1 July 2021 – Opinion of the Advocate General in the case C-638/19 P

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