In Case C‑638/19

13The background to the dispute, as described in paragraphs1 to 42 of the judgment under appeal, may be summarised as follows.

14On 2October 1998, the Romanian authorities adopted Emergency Government Ordinance No24/1998 (‘EGO24’), granting certain investors in disadvantaged regions who had obtained permanent investor certificates a series of tax incentives, including, inter alia, facilities such as exemption from customs duties and value added tax for machinery, reimbursement of customs duties for raw materials and exemption from the payment of profit tax which applied for as long as the relevant area was designated as a ‘disadvantaged region’.

15By decision of 25March 1999, the Romanian Government designated the mining area of Ștei-Nucet, Bihor County (Romania), to be a ‘disadvantaged region’ for 10years, with effect from 1April 1999.

16In order to comply with the obligation progressively to align Romanian legislation with European Union legislation laid down by the Europe Agreement, Romania adopted in 1999 Law No143/1999 on State aid, which entered into force on 1January 2000. That law defined State aid in the same terms as those used in Article64 of the Europe Agreement and in Article107(1) TFEU. It also designated the Consiliul Concurenţei (Competition Council, Romania) and the Oficiul Concurenței (Competition Office, Romania) as the national State aid surveillance authorities competent to assess the compatibility of State aid granted by Romania to undertakings.

17By Decision No244/2000 the Competition Council found that several of the tax incentives granted under EGO24 constituted State aid and consequently had to be revoked.

18On 1July 2000, Emergency Government Ordinance No75/2000 (‘EGO75’), amended EGO24 while maintaining the tax incentives at issue (together, ‘the tax incentives scheme at issue’).

19The Competition Council brought an action before the Curtea de Apel București (Court of Appeal, Bucharest, Romania) in which it submitted that, in spite of the adoption of EGO75, its Decision No244/2000 had not been implemented. That action was dismissed on 26January 2001 on the ground that EGO75 had to be regarded as a legislative act and that consequently its lawfulness could not be contested by the Competition Council pursuant to Law No143/1999. By a judgment of 19February 2002 the Înalta Curte de Casație și Justiție (High Court of Cassation and Justice, Romania) confirmed that decision.

20MrIoan Micula and MrViorel Micula, Swedish citizens residing in Romania, are the majority shareholders of the European Food and Drinks Group, whose activities include the production of food and drink in the region of Ștei-Nucet, Bihor County. The company European Food and Drinks Group owns European Food SA, Starmill SRL, Multipack SRL, Scandic Distilleries SA, European Drinks SA, Rieni Drinks SA, Transilvania General Import-Export SRL and West Leasing International SRL.

21On the basis of the permanent investor certificates, obtained on 1June 2000 by European Food and on 17May 2002 by Starmill and Multipack, those three companies made investments in the mining area Ștei-Nucet.

22In February 2000 the negotiations for the accession of Romania to the European Union started. In those negotiations the European Union noted, in the common position of 21November 2001, that in Romania there were ‘a number of existing as well as new incompatible aid schemes which [had] not been brought into line with the acquis’, including ‘facilities provided under [the tax incentives scheme at issue]’.

23On 26August 2004 Romania repealed all the measures granted under the tax incentives scheme at issue with the exception of the exemption from corporate tax, stating that ‘in order to meet the criteria in the Community rules on State aid, and also to complete the negotiations under Chapter No6– Competition Policy, it [was] necessary to eliminate all forms of State aid in national legislation incompatible with the acquis communautaire in this area’. That repeal came into effect on 22February 2005.

24On 28July 2005 MrIoan Micula, MrViorel Micula, European Food, Starmill and Multipack (‘the arbitration applicants’), requested the establishment of an arbitral tribunal pursuant to Article7 of the BIT, in order to obtain compensation for the damage resulting from the revocation of the tax incentives scheme at issue.

25On 1January 2007 Romania acceded to the European Union.

26By decision of 24September 2008, the arbitral tribunal found that the arbitration applicants’ claims were admissible.

27In its arbitral award of 11December 2013 (‘the arbitral award’) the arbitral tribunal found that, by repealing the tax incentives scheme at issue prior to 1April 2009, Romania had violated the legitimate expectations of the [arbitration applicants] who thought that those incentives would be available, in substantially the same form, until 31March 2009 inclusive, had failed to act transparently by failing to inform those applicants in a timely manner and had failed to ensure fair and equitable treatment of the investments of those applicants, within the meaning of Article2(3) of the BIT. Consequently, the arbitral tribunal ordered Romania to pay the arbitration applicants, by way of damages, the sum of 791882452 Romanian lei (RON) (approximately EUR178 millions), that sum being fixed by taking into account principally the loss allegedly suffered by the applicants in the period from 22February 2005 until 31March 2009.

28On 31January 2014, the Commission services informed the Romanian authorities that any implementation or execution of the arbitral award would be regarded as constituting new aid and would have to be notified to the Commission.

29On 20February 2014, the Romanian authorities informed the Commission services that they had paid part of sum awarded by the arbitral tribunal to the arbitration applicants by way of damages, by offsetting it against taxes owed to the Romanian authorities by European Food.

30On 26May 2014, the Commission adopted Decision C(2014)3192 final, obliging Romania immediately to suspend any action that might lead to the implementation or execution of the arbitral award, on the ground that such action appeared to constitute unlawful State aid, until the Commission had taken a final decision on the compatibility of that State aid with the internal market.

31On 1October 2014 the Commission informed Romania that it had decided to initiate the formal investigation procedure laid down in Article108(2) TFEU in respect of the partial implementation of the arbitral award by Romania that took place in early 2014 as well as in respect of any further implementation or execution of the arbitral award.

32On 29May 2015 the Romanian authorities transferred the remainder of the sum due under the arbitral award and, thus, regarded that award as having been fully implemented.

33On 30March 2015 the Commission adopted the decision at issue. Article1 of that decision provides that the payment of the compensation awarded by [the arbitral] award to the single economic unit comprising Ioan Micula, Viorel Micula, European Food, Starmill, Multipack, European Drinks, Rieni Drinks, Scandic Distilleries, Transilvania General Import-Export and West Leasing constitutes a ‘State aid’ within the meaning of Article107(1) TFEU which is incompatible with the internal market. Pursuant to Article2 of that decision, Romania is required not to pay out any incompatible aid referred to in Article1 of the decision and to recover such aid which has already been paid out to the entities comprising that economic unit as well as any aid paid out to those entities which was not notified to the Commission pursuant to Article108(3) TFEU, and any aid paid out after the date of that decision.