The Curious Incident of the ‘State Aid’ Granted by an International Arbitral Tribunal

In case C-638/19 P Commission v European Food ECLI:EU:C:2022:50, the Grand Chamber of the Court of Justice of the European Union held that the Commission was competent to assess the compatibility of State aid granted as a consequence of an arbitral award issued against Romania by a tribunal established under a bilateral investment treaty, even though the facts occurred and the proceedings were initiated before the accession of that State to the EU. In so doing, the CJEU focused on the date of the granting of the aid according to principles arising from art. 107(1) TFEU, finding that only at the end of the arbitral proceedings could the right to receive damage compensation be considered as acquired by the beneficiaries. The judgment, which is not completely convincing in the methodology employed or in its conclusions, may have significant implications for the notion of State aid, insofar as it includes measures enshrined in arbitral or judicial decisions, and on the problematic interaction between EU State aid rules and investment arbitration.