Summary

RESPONSE OF AMICUS CURIAE THE EUROPEAN COMMISSION
TO PETITIONERS' NOTICE OF SUPPLEMENTAL AUTHORITY

Petitioners dramatically overstate the significance of the judgment in European Food S/A et al. v. European Commission, Cases T-624/15, T-694/15, and T-704/15 (June 18, 2019) ("General Court Judgment"). In that judgment, the General Court of the European Union—the court of first instance for reviewing acts of the European Commission—annulled the Commission's State Aid Decision. But it did not render the E.U. court's final word on the matter: The General Court Judgment is subject to a right of appeal to the Court of Justice ("ECJ"), which may overturn or alter that judgment. Nor does the General Court Judgment have the consequence of lifting the legal prohibition on Romania paying the Award; on the contrary, that judgment has led to the reopening of the Commission's investigation into the Award, during which time Romania remains barred under E.U. law from paying the Award. Furthermore, the General Court did not address whether the bilateral investment treaty concluded between Romania and Sweden (the "Romania-Sweden BIT") is itself unlawful—the principal reason, the Commission has explained, why this Court lacks jurisdiction or legal authority to confirm the Award. In short, far from "moot[ing]" the Commission's arguments, Notice of Supplemental Authority at 1, the General Court Judgment leaves intact every reason why confirmation of the Award is improper and beyond this Court's jurisdiction. The Court should dismiss the petition, or, at minimum, stay its hand until proceedings in the E.U. courts actually conclude. ...