In Case C‑638/19

149In accordance with the second sentence of the first paragraph of Article61 of the Statute of the Court of Justice of the European Union, if the decision of the General Court is set aside, the Court of Justice may itself give final judgment in the matter, where the state of the proceedings so permits.

150In the present case that is so for the first part of the first plea in Case T‑704/15, alleging that the Commission lacked competence to adopt the decision at issue under Article108 TFEU, and the first part of the second plea in Cases T‑624/15 and T‑694/15, alleging that there was no advantage within the meaning of Article107(1) TFEU conferred by the payment of damages, in so far as that part partially seeks to call into question that competence on the ground that the alleged advantage was granted before Romania’s accession to the European Union.

151For the reasons set out in paragraphs123 to 127 above, the Commission is competent to adopt the decision at issue under Article108 TFEU, since the entitlement to the State aid referred to in that decision was granted by the arbitral award after Romania’s accession to the European Union.

152It is irrelevant in that respect that Article1 of the decision at issue, as European Food and Others and Viorel Micula and Others have pointed out, classifies as ‘State aid’, within the meaning of Article107(1) TFEU, not the entitlement to compensation arising from the grant of the arbitral award, as recitals137 and 144 of that decision might in their view suggest, but the payment of that compensation. Those grounds do not affect the date of delivery of that award and, therefore, cannot call into question the Commission’s competence to adopt that decision under Article108 TFEU.

153It is necessary therefore to reject the first part of the first pleas raised in Case T‑704/15 and the first part of the second plea in Cases T‑624/15 and T‑694/15, in so far as they seek to call into question the Commission’s competence to adopt the decision at issue under Article108 TFEU.

154By contrast, the General Court did not examine the other arguments, parts and pleas relied on by European Food and Others and Viorel Micula and Others in support of their actions, which concern the merits of the decision at issue, in particular the question whether the measure referred to in that decision satisfies, from a substantive point of view, the conditions laid down in Article107(1) TFEU. Examination of that part of the action involves complex assessments of fact, in respect of which the Court does not have all the necessary facts (see, by analogy, judgment of 16September 2021, Commission v Belgium and Magnetrol International, C‑337/19P, EU:C:2021:741, paragraph170).

155Consequently, the Court considers that, as regards those other arguments, parts and pleas, the state of the proceedings does not permit final judgment to be given and that the case should therefore be referred back to the General Court to give judgment on them.