In Case C‑638/19

Arguments of the parties

–The first part of the first ground of appeal

83By the first part of its first ground of appeal, the Commission submits that the General Court wrongly held, in paragraphs68 to 80 and 86 of the judgment under appeal, that the arbitration applicants’ right to compensation granted by the arbitral award was conferred on them on 22February 2005, namely before Romania’s accession to the European Union, when that State repealed the tax incentives scheme at issue and that therefore the repeal of that scheme constitutes the State aid measure at issue, whereas it is the payment of that compensation which constitutes that aid.

84It follows that the General Court made an error of law consisting of the misinterpretation and misapplication of the Court’s case-law concerning the date on which State aid is granted for the purposes of the exercise of the Commission’s competence under Article108 TFEU. That error stems from another error of law consisting of an incorrect legal classification of the facts concerning the measure by which Romania granted the alleged State aid at issue.

85The question whether the Commission was competent to adopt the decision at issue under Article108 TFEU depends on the date on which Romania adopted the measure capable of constituting State aid. In that regard, it is clear from the Court’s case-law following the judgment of 21March 2013, Magdeburger Mühlenwerke (C‑129/12, EU:C:2013:200, paragraphs40 and 41), that the existence of a legal entitlement on the basis of which immediate payment of an aid may be demanded constitutes the legal criteria for classification of a State aid.

86In the present case, however, the arbitration applicants obtained the right to the compensation in question only when the arbitration award became enforceable under national law. The unconditional right to the payment of damages granted as a result of the repeal of the tax incentives scheme at issue flowed from that award, in conjunction with the national law that obliged Romania to implement it. Consequently, the decision at issue was correct in regarding Romania’s payment, whether voluntarily made or enforced, of that compensation as constituting a State aid. Since that State aid was granted after Romania’s accession to the European Union, the Commission was competent to adopt that decision.

87In any event, account must be taken of the need to ensure that the prohibition of State aid laid down in Article64(1)(iii) of the Europe Agreement and Article107(1) TFEU is not circumvented by means of an arbitration clause contained in a BIT that is binding on Member States. The General Court failed to have regard to that context in the judgment under appeal.

88European Food and Others and Viorel Micula and Others submit that the General Court correctly applied the principles relating to the date on which State aid is granted, as derived from the case-law of the Court of Justice.

89They submit that it is apparent from the judgment of 21March 2013, Magdeburger Mühlenwerke (C‑129/12, EU:C:2013:200, paragraphs40 and 41), that State aid must be regarded as granted on the date on which the right to receive it is conferred on the beneficiary under the applicable national rules. As regards damages, it must be held that the right to compensation for damage arises on the date on which the event giving rise to that damage occurred, any subsequent event being incidental and not altering the nature or value of the entitlements established on the date of the event giving rise to the damage.

90The General Court was therefore, they submit, fully entitled to find, in paragraph75 of the judgment under appeal, that the right to compensation, confirmed by the arbitral award, arose on 22February 2005, when Romania repealed the tax incentives scheme at issue, in breach of the BIT, and that, therefore, the Commission was not competent to adopt the decision at issue under Article108 TFEU. In making that finding, the General Court held, rightly, that the Commission had wrongly concluded that the alleged State aid had been granted through payment of the compensation granted by that award.

91In particular, they submit that the date on which the arbitral award was integrated into the national legal order is irrelevant. That award did not give rise to rights which did not exist before Romania’s accession to the European Union, since a decision, be it judicial or arbitral, awarding damages for harm caused by an unlawful act did not constitute the right, but was declaratory of rights and obligations arising when that unlawful act was committed. In addition, under Article54 of the ICSID Convention, Romania is required to recognise and enforce the arbitral award, irrespective of the status of that award under Romanian procedural law.

92The General Court was therefore correct, they submit, to hold that the implementation of the arbitral award represents only the enforcement of a right which arose on 22February 2005, since neither that award nor its registration in Romania, nor its subsequent enforcement conferred on the arbitration applicants any additional advantage over and above the rights which they already enjoyed on that date.

93Moreover, it was not the repeal of the tax incentives scheme at issue, but the infringement of the BIT by Romania that conferred on arbitration applicants the right to receive compensation the payment of which was classified by the decision at issue as constituting State aid. The arbitral tribunal could thus have definitively held Romania liable for that infringement before the accession of that State to the European Union. Neither the arbitration award nor the calculation of the exact amount of damages awarded is therefore relevant for the purposes of determining the date on which the right to receive State aid is conferred on its beneficiaries.

–The second ground of appeal

94By the first part of the second ground of appeal, the Commission submits that, by holding, in paragraphs66, 67 and 80 to 88 of the judgment under appeal, that EU law was not applicable ratione temporis to the compensation granted by the arbitral award, on the ground that all the events giving rise to that compensation occurred before Romania’s accession to the European Union, the General Court infringed Article2 of the Act of Accession, read in the light of the case-law of the Court of Justice, as it emerges, inter alia, from the judgment of 12September 2013, Kuso, (C‑614/11, EU:C:2013:544, paragraph25) according to which EU law applies to the future effects of a situation which arose under the old rules. In particular, from the date of accession of a new Member State, EU law applies to all existing situations.

95In the present case, the Commission submits, since the arbitral proceedings were pending on the date of Romania’s accession to the European Union, the arbitral tribunal’s decision-making process was ongoing at that date. Furthermore, according to the findings made by that tribunal, the arbitration applicants suffered gradually, over the period between 2005 and 2011, the harm for which they sought compensation.

96It follows that the delivery of the arbitral award entailed the application of EU law, since it created rights which did not exist before Romania’s accession to the European Union and it determined, by means of a complex economic assessment, the amount of compensation. The effects of that award thus constitute the future effects of a situation which arose before accession. The Commission submits that that award cannot therefore be regarded as recognition of a right which arose on the date on which Romania repealed the tax incentives scheme at issue.

97On the contrary, the repeal of that regime and the arbitral award are two separate legal acts, the first ensuring compliance with Article64(1)(iii) of the Europe Agreement and the second granting compensation for the repeal of a State aid scheme incompatible with that provision. That situation is comparable to that examined in the case which gave rise to the judgment of 29June 2004, Commission v Council (C‑110/02, EU:C:2004:395), in which the Court held that EU law prohibits the circumvention of a Commission decision declaring State aid incompatible with the internal market by means of a second legal act granting compensation intended to compensate for the repayments which the beneficiaries of that State aid are obliged to make pursuant to that decision.

98By the second part of the second ground of appeal, the Commission submits that, in any event, the General Court, by holding that EU law was not applicable ratione temporis to the compensation awarded by the arbitral award, infringed the Europe Agreement as that agreement, which is part of EU law, was applicable to all events prior to the accession which gave rise to that compensation. Article64(1)(iii) of that agreement prohibited Romania from granting State aid which had not been authorised during the period preceding its accession to the European Union.

99According to the Commission, that error led the General Court to make another error of law, in paragraph87 of the judgment under appeal, when it held that the situation at issue in the present case was, for that reason, different from that which gave rise to the judgment of 6March 2018, Achmea (C‑284/16, EU:C:2018:158). The arbitral tribunal itself acknowledged that the European Agreement laid down rules of law which it had to apply to the dispute before it. The present case is therefore a case in which private arbitration replaces the EU judicial system for resolving disputes in the field of EU law. Consequently, the General Court infringed Articles267 and 344 TFEU.

100European Food and Others and Viorel Micula and Others submit that the first part of the second ground of appeal is based, in its entirety, on the erroneous assertion that the right to compensation, which arose when the BIT was infringed, produces future effects after Romania’s accession to the European Union.

101They submit that it is apparent from the case-law of the Court, in particular from the judgments of 15June 1999, Andersson and Wåkerås-Andersson (C‑321/97, EU:C:1999:307, paragraph31), and of 10January 2006, Ynos (C‑302/04, EU:C:2006:9, paragraph36), that EU law, in particular Articles107 and 108 TFEU, does not apply to aid measures granted before Romania’s accession to the European Union. The limited circumstances in which the Commission may examine such aid measures derive from the provisions of the relevant acts of accession and not from a general principle of EU law.

102In the present case, the arbitral award did not create rights which did not exist before Romania’s accession to the European Union, but should be understood as a declaration that rights which existed before Romania’s accession were infringed. Nor did payment of damages produce future effects, but represented merely the enforcement of the right to compensation, which was only confirmed and quantified by the arbitral award.

103The right to the compensation at issue arose, they argue, from Romania’s infringement of the BIT on account of the way in which Romania repealed, before its accession to the European Union, the tax incentives scheme at issue. All the events necessary to establish Romania’s liability thus occurred before accession. It is irrelevant in that regard that the calculation of the amount of damages required a complex economic analysis.

104The infringement of the BIT and the award of compensation do not therefore constitute two separate legal acts. Consequently, no analogy may be drawn with the case giving rise to the judgment of 29June 2004, Commission v Council (C‑110/02, EU:C:2004:395), in which the Member State concerned had, first, laid down an aid scheme which was repealed following a Commission decision declaring it incompatible with the internal market and requiring that Member State to recover the individual aids granted under that scheme and, second, granted to the beneficiaries of those aids new aid of an equivalent amount intended to neutralise the consequences of the reimbursements that they were required to make. By contrast, the compensation granted by the arbitral award is intended to compensate for damage suffered as a result of the infringement of the BIT. Furthermore, since that award was adopted by an independent arbitral tribunal, it is not an act attributable to the Romanian State.

105In any event, they submit, the Commission is not competent to require recovery of compensation granted by the arbitral award in so far as that award seeks to make good damage suffered before Romania’s accession to the European Union. If the tax incentives scheme at issue had not been repealed, the aid granted under that scheme during that period would have escaped the Commission’s supervisory powers under Article108 TFEU.

106As regards the second part of the second ground of appeal, European Food and Others and Viorel Micula and Others submit that the General Court did not err in its interpretation or application of the Europe Agreement. It is true that that agreement, since it constitutes an international agreement concluded by the European Union, its Member States and Romania, forms an integral part of the EU legal order. However, they submit, prior to Romania’s accession to the European Union, such an agreement did not form part of EU law for that State; it falls within the scope of EU law only with regard to the European Union itself and the Member States.

107Furthermore, the General Court did not infringe Articles267 and 344 TFEU when it held, in paragraph87 of the judgment under appeal, that the findings made by the Court of Justice in the judgment of 6March 2018, Achmea (C‑284/16, EU:C:2018:158), did not apply to the present case. That judgment concerns the situation in which a Member State agrees to remove disputes which concern the interpretation and application of EU law from the judicial system of the European Union. However, that is not the case here, since, first, Romania did not have the status of a Member State when the action was brought before the arbitral tribunal and, secondly, the Europe Agreement did not fall within the scope of EU law for Romania.

Findings of the Court

108By its first and second grounds of appeal, in their first parts, the Commission submits, in essence, that the General Court erred in law in holding that it lacked competence under Article108 TFEU to adopt the decision at issue. By that decision, the Commission considered that the payment of damages awarded by the arbitral tribunal, in its award delivered after Romania’s accession to the European Union, in compensation for the damage which the arbitration applicants claim to have suffered as a result of the repeal by that State– prior to that accession– of the tax incentives scheme at issue, allegedly in breach of the BIT, constitutes State aid, within the meaning of Article107(1) TFEU, which is unlawful and incompatible with the internal market.

109It should be recalled that Article108 TFEU establishes a system of prior control of measures that may constitute ‘State aid’ within the meaning of Article107(1) TFEU. In particular, Article108(3) TFEU establishes a prior control of plans to grant new aid. The aim of that system of prior control is therefore that only State aid compatible with the internal market, within the meaning of Article107(3) TFEU, is implemented (see, to that effect, judgment of 3March 2020, Tesco-Global Áruházak, C‑323/18, EU:C:2020:140, paragraph31 and the case-law cited).

110The notification requirement is one of the fundamental features of that system of control. Within that system, Member States are under an obligation, first, to notify to the Commission each measure intended to grant new ‘State aid’ or to alter ‘State aid’, within the meaning of Article107(1) TFEU, and, second, not to implement such a measure, in accordance with Article108(3) TFEU, until that EU institution has taken a final decision on that measure (judgment of 24November 2020, Viasat Broadcasting UK, C‑445/19, EU:C:2020:952, paragraph19 and the case-law cited).

111That obligation has direct effect on all the authorities of the Member States (see, to that effect, judgment of 5March 2019, Eesti Pagar, C‑349/17, EU:C:2019:172, paragraphs88 and 90).

112As the General Court correctly pointed out, in paragraphs66, 67 and 79 of the judgment under appeal, EU law, and Article108 TFEU in particular, became applicable in Romania in accordance with Article2 of the Act of Accession with effect from 1January 2007, the date on which that State acceded to the European Union, under the conditions laid down in that act (see, by analogy, judgment of 29November 2012, Kremikovtzi, C‑262/11, EU:C:2012:760, paragraph50).

113It follows that, as the General Court also noted, in paragraphs67 and 79 of the judgment under appeal, it was from that date that the Commission acquired the power enabling it to review, under Article108 TFEU, measures taken by that Member State which might constitute ‘State aid’ within the meaning of Article107(1) TFEU.

114On that basis the General Court correctly concluded, in essence, in paragraph68 of that judgment, that, in order to determine whether the Commission was competent to adopt the decision at issue under Article108 TFEU, it was necessary to define the date on which the measure that, according to that decision, gave rise to ‘State aid’, within the meaning of Article107(1) TFEU, was adopted.

115According to the settled case-law of the Court of Justice, to which the General Court refers in paragraph69 of that judgment, State aid must be regarded as being ‘granted’, within the meaning of Article107(1) TFEU, on the date on which the right to receive it is conferred on the beneficiary under the applicable national legislation (see, to that effect, the judgments of 21March 2013, Magdeburger Mühlenwerke,C‑129/12, EU:C:2013:200, paragraph40; of 6July 2017, Nerea, C‑245/16, EU:C:2017:521, paragraph32; and of 19December 2019, Arriva Italia and Others, C‑385/18, EU:C:2019:1121, paragraph36).

116In the present case, as is apparent from the judgment under appeal, in particular from paragraphs74 to 78 and 80 thereof, the General Court considered that the right to receive the compensation granted by the arbitral award, the payment of which, according to the decision at issue, gave rise to the grant of State aid, arose and began to produce its effects when Romania repealed, allegedly in breach of the BIT, the tax incentives scheme at issue. According to the General Court, that award is only an ancillary element of that compensation, since, by merely determining the exact damage suffered by the arbitration applicants as a result of that repeal, it constitutes the mere recognition of a right which arose at the time of that repeal, whereas the payments made subsequently represent only the enforcement of that right.

117In that regard, it should be noted that, admittedly, as the General Court found, in paragraphs72 and 73 of the judgment under appeal, the compensation granted by the arbitral award, since it is intended to compensate for the damage which the arbitration applicants claim to have suffered as a result of the repeal by Romania of the tax incentives scheme at issue, allegedly in breach of the BIT, has its origin in that repeal, which constitutes the event giving rise to the damage for which that compensation was granted.

118It is also true that it cannot be ruled out that, according to the principles deriving from national law on civil liability, such a right to compensation arises on the date of the repeal of that system, as the General Court held in paragraphs74 and 75 of the judgment under appeal.

119It should, however, be recalled that the objective of the rules established by the FEU Treaty in relation to State aid is to preserve competition in the internal market (judgment of 6November 2018, Scuola Elementare Maria Montessori v Commission, Commission v Scuola Elementare Maria Montessori and Commission v Ferracci, C‑622/16P to C‑624/16P, EU:C:2018:873, paragraph43 and the case-law cited).

120To that end, the FEU Treaty, in particular Article108 TFEU, conferred on the Commission, as recalled in paragraphs109 and 110 of this judgment, the power to determine whether a measure constitutes ‘State aid’ within the meaning of Article107(1) TFEU and, therefore, conferred on it the power to ensure that measures meeting the conditions laid down in that provision are not implemented by the Member States or are implemented by them only after such measures have been declared compatible with the internal market.

121In that regard, it is clear from the case-law that classification as ‘State aid’ within the meaning of Article107(1) TFEU requires four conditions to be satisfied, namely that there be intervention by the State or through State resources, that the intervention be liable to affect trade between Member States, that it confer a selective advantage on the beneficiary, and that it distort or threaten to distort competition. Furthermore, that advantage must be attributable to the State (see, to that effect, judgment of 3March 2021, Poste Italiane and Agenzia delle entrate–Riscossione, C‑434/19 and C‑435/19, EU:C:2021:162, paragraphs37 and 39 and the case-law cited).

122It should also be borne in mind that the concept of ‘advantage’, which is intrinsic to the classification of a measure as State aid, is an objective one, irrespective of the motives of the persons responsible for the measure in question. Accordingly, the nature of the objectives pursued by State measures and their grounds of justification have no bearing whatsoever on whether such measures are to be classified as State aid. Article107(1) TFEU does not distinguish between the causes or the objectives of State aid, but defines them in relation to their effects (judgment of 4March 2021, Commission v Fútbol Club Barcelona, C‑362/19P, EU:C:2021:169, paragraph61 and the case-law cited).

123In the light of those considerations, it appears that, as the Advocate General observed in point125 of his Opinion, the decisive factor for establishing the date on which the right to receive State aid was conferred on its beneficiaries by a particular measure is the acquisition by those beneficiaries of a definitive right to receive that aid and to the corresponding commitment, by the State, to grant that aid. It is at that date that such a measure is liable to distort competition and affect trade between Member States, within the meaning of Article107(1) TFEU.

124In the present case, it must be noted that the right to compensation for the loss which the arbitration applicants allege to have suffered as a result of the repeal, allegedly in breach of the BIT, of the tax incentives scheme at issue was granted only by the arbitration award. It was only upon the conclusion of the arbitral proceedings brought for that purpose by the arbitration parties, on the basis of the arbitration clause in Article7 of the BIT, that the arbitration applicants were able to obtain actual payment of that compensation.

125It follows that, even if, as the General Court pointed out on numerous occasions in the judgment under appeal, the repeal, allegedly in breach of the BIT, of the tax incentives scheme at issue constitutes the event giving rise to the damage, the right to the compensation in question was granted solely by the arbitral award issued by that court, which, having upheld the claim brought by the arbitration applicants, not only found the existence of that right, but also quantified the amount thereof.

126It follows that the General Court erred in law when it held, in paragraphs75 and 78 of the judgment under appeal, that the State aid covered by the decision at issue was granted on the date of repeal of the tax incentives scheme at issue.

127Consequently, the General Court also erred in law when it held, in paragraphs79 and 92 of the judgment under appeal, that the Commission lacked competence to adopt the decision at issue under Article108 TFEU.

128None of the arguments put forward by European Food and Others and Viorel Micula and Others is capable of calling that assessment into question.

129In the first place, the argument that the arbitral tribunal, which had been seised before Romania’s accession to the European Union, could have delivered its ruling before that accession is purely speculative and must therefore be rejected.

130In the second place, as regards the argument that the arbitral award, unlike the situation at issue in the judgment of 29June 2004, Commission v Council (C‑110/02, EU:C:2004:395), is not intended to re-establish a State aid scheme previously declared by the Commission to be incompatible with the internal market pursuant to Article108(2) TFEU, but grants damages in compensation for loss suffered as a result of the alleged infringement of the BIT and is not, moreover, attributable to the State, with the result that it does not fall within the scope of Article107(1) TFEU, that argument must be rejected as being irrelevant for the purposes of the examination of this appeal.

131As is apparent from paragraph80 of this judgment, the question whether the compensation granted by that award may constitute ‘State aid’ within the meaning of Article107(1) TFEU, in particular in the light of the case-law stemming from the judgment of 27September 1988, Asteris and Others (106/87 to 120/87, EU:C:1988:457, paragraphs23 and 24), according to which such aid is of a fundamentally different legal nature from that of the damages which national authorities may be ordered to pay to individuals in compensation for damage they have caused to those individuals, is not the subject matter of the present appeal and is therefore outside the Court’s jurisdiction in this context.

132Moreover, the power held by the Commission under Article108 TFEU cannot in any case depend on the outcome of the examination of whether the compensation at issue is capable of constituting ‘State aid’, within the meaning of Article107(1) TFEU, since the prior control by the Commission pursuant to Article108 TFEU is intended, inter alia, as is apparent from paragraphs109 and 120 of this judgment, to determine whether that is the case.

133In the third place, as regards the argument that the compensation awarded by the arbitral award seeks, in part, as the General Court noted in paragraphs89 and 90 of the judgment under appeal, to make good the damage which the arbitration applicants claim to have suffered during a period prior to Romania’s accession to the European Union, that argument must also be rejected as irrelevant.

134That fact, contrary to what the General Court held in paragraph91 of that judgment, is not such as to call into question the Commission’s competence to adopt the decision at issue under Article108 TFEU, since, as is apparent from paragraphs124 to 127 of this judgment, the right to that compensation was actually granted after that accession, by the adoption of the arbitral award.

135In that respect it is irrelevant that the Commission would not have been competent under that provision to monitor, before Romania’s accession to the European Union, the tax incentives scheme at issue if it had not been repealed by Romania. It suffices to note in that regard that, by the decision at issue, the Commission examined, in the light of the rules of the FEU Treaty on State aid, not that tax incentives scheme, which had been repealed before that accession and was moreover no longer in force, as European Food and Others and Viorel Micula and Others themselves point out, but the payment of damages made pursuant to the arbitral award issued after that accession.

136It follows that the judgment under appeal is vitiated by errors of law as regards the determination, first, of the date on which the State aid referred to in the decision at issue was granted and, second, the Commission’s competence to adopt that decision under Article108 TFEU.

137Moreover, the General Court also erred in law when it held, in paragraph87 of the judgment under appeal, that the judgment of 6March 2018, Achmea (C‑284/16, EU:C:2018:158), is irrelevant for the present case.

138It should be recalled that in that judgment the Court held that Articles267 and 344 TFEU must be interpreted as precluding a provision contained in an international agreement concluded between two Member States under which an investor from one of those Member States may, in the event of a dispute concerning investments in the other Member State, bring proceedings against the latter Member State before an arbitral tribunal whose jurisdiction that Member State has undertaken to accept (judgment of 6March 2018, Achmea, C‑284/16, EU:C:2018:158, paragraph60).

139By concluding such an agreement, the Member States which are parties to it agree to remove from the jurisdiction of their own courts and, therefore, from the system of judicial remedies which the second subparagraph of Article19(1) TEU requires them to establish in the fields covered by EU law disputes which may concern the application or interpretation of EU law. Such an agreement is, therefore, capable of preventing those disputes from being resolved in a manner that guarantees the full effectiveness of that law (judgment of 26October 2021, PL Holdings, C‑109/20, EU:C:2021:875, paragraph45 and the case-law cited).

140In the present case, with effect from the date of Romania’s accession to the European Union, EU law, including Articles107 and 108 TFEU, was applicable to that Member State. As is apparent from the information in the case file referred to in paragraph27 above, it is common ground that the compensation sought by the arbitration applicants did not relate exclusively to the damage allegedly suffered before that date of accession, with the result that the dispute brought before the arbitral tribunal cannot be regarded as being confined in all respects to a period during which Romania, which had not yet acceded to the European Union, was not yet bound by the rules and principles recalled in paragraphs138 and 139 above.

141It is common ground that the arbitral tribunal before which that dispute was brought does not form part of the EU judicial system which the second subparagraph of Article19(1) TEU requires the Member States to establish in fields covered by EU law, which, with effect from Romania’s accession to the European Union, replaced the mechanism for resolving disputes that might concern the interpretation or application of EU law.

142First, that arbitral tribunal is not a ‘court or tribunal of a Member State’ within the meaning of Article267 TFEU and, second, the arbitral award delivered by that court is not subject, in accordance with Articles53 and 54 of the ICSID Convention, to any review by a court of a Member State as to its compliance with EU law.

143Contrary to the submissions made at the hearing by European Food and Others and Viorel Micula and Others, that assessment cannot be called into question by the fact that Romania had consented to the possibility of litigation being brought against it in the context of the arbitration procedure provided for by the BIT.

144Such consent, unlike that which would have been given in commercial arbitration proceedings, does not originate in a specific agreement reflecting the freely expressed wishes of the parties concerned, but derives from a treaty concluded between two States in the context of which they have, generally and in advance, agreed to exclude from the jurisdiction of their own courts disputes which may concern the interpretation or application of EU law in favour of arbitration proceedings (see, to that effect, judgments of 6March 2018, Achmea, C‑284/16, EU:C:2018:158, paragraphs55 and 56, and of 2September 2021, Republic of Moldova, C‑741/19, EU:C:2021:655, paragraphs59 and 60).

145In those circumstances, since, with effect from Romania’s accession to the European Union, the system of judicial remedies provided for by the EU and FEU Treaties replaced that arbitration procedure, the consent given to that effect by Romania, from that time onwards, lacked any force.

146In the light of all the foregoing considerations, the first ground of appeal, in its first part, and the second ground, in both parts, must be upheld, without it being necessary to rule either on the other arguments put forward in that context or the second part of the first ground of appeal.

147As the General Court has, by the judgment under appeal, annulled the decision at issue, as stated in paragraphs36 to 38 of this judgment, on the sole ground, in essence, that the Commission lacked competence to adopt that decision under Article108 TFEU because EU law was not applicable ratione temporis to the compensation granted by the arbitral award, the errors of law, as set out in paragraphs126, 127 and 136 of this judgment, which vitiate that reasoning justify in themselves the setting aside of the judgment under appeal in its entirety.

148In those circumstances, the judgment under appeal must be set aside without there being any need to examine either the third ground of the main appeal or the cross-appeal; the latter, by which the Kingdom of Spain alleges, first, infringement of Article19 TEU and Articles267 and 344 TFEU and, second, the inadmissibility of the action at first instance, having become devoid of purpose (see, by analogy, judgment of 22April 2008, Commission v Salzgitter, C‑408/04P, C‑262/04, EU:C:2008:236, paragraph17).