Opinion of Advocate General Szpunar Delivered on 1 July 2021 - Case C-638/19 P European Commission v European Food SA, Starmill SRL, Multipack SRL, Scandic Distilleries SA, Ioan Micula, Viorel Micula, European Drinks SA, Rieni Drinks SA, Transilvania General Import-Export SRL, West Leasing SRL, formerly West Leasing International SRL
(Appeal - State aid - Arbitration - Aid resulting from the payment of compensation awarded to certain economic operators by an arbitral tribunal - Bilateral investment treaty - Application of European Union law)
1. The tumultuous encounter between EU law and investment arbitration law has raised numerous questions which the judgment in Achmea (2) will not have sufficed to eliminate. The present case, symbolic of that conflictual relationship, therefore provides the Court with a welcome opportunity to clarify further, by recalling the reasoning underlying that judgment, the principles governing the question of the compatibility with EU law of arbitration proceedings based on bilateral investment treaties concluded between two Member States, in the particular context of arbitration proceedings initiated on the basis of a bilateral investment treaty concluded between two Member States before the accession to the European Union of the State party to the arbitration.
2. Situated at the junction between investment arbitration and the law on State aid, this case is also an opportunity to examine the question of the extent of the European Commission's competence under Articles 107 and 108 TFEU in such a context.
3. By its appeal, the Commission requests the Court to set aside the judgment of the General Court of the European Union of 18 June 2019, European Food SA and Others v Commission (T-624/15, T-694/15 and T-704/15, 'the judgment under appeal', EU:T:2019:423), whereby the General Court 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').