On 25 January 2022 the CJEU has annulled the ruling of the General Court in the famous Micula case which has given rise to intense debate for years amongst EU State aid experts (CJEU, Case C-638/19 P, ECLI:EU:C:2022:50). The first instance court had seen the Commission to lack competence to assess the alleged aid, seen in damages awarded on the basis of an award made by an arbitral tribunal according to rules of international law, by an argument „ratione temporis“ (GC, judgment of 18.6.2019, Joined Cases T-624/15, T-694/15 and T-704/15, European Food u.a. v. Kommission, ECLI:EU:T:2019:423).
This has completely changed.
The CJEU sees the arbitration award as the event giving rise to the damage at issue, rather than the tax incentive scheme that had predated the accession of Romania to the European Union. The arbitration award was dated 11 December 2013 and was therefore post accession. According to the CJEU the Commission is very much competent to scrutinise the arbitration award in a State aid procedure. Whether or not this award qualifies as an aid within the notion of Article 107 (1) TFEU the CJEU has referred back to the first instance.
By this ruling the CJEU has expressly authorised the Commission to subject arbitration awards to the Treaty´s rules on State aid.