In Case C‑638/19

34By applications lodged at the Registry of the General Court on 6, 30 and 28November 2015 respectively, European Food, Starmill, Multipack and Scandic Distilleries, in Case T‑624/15, MrIoan Micula, in Case T‑694/15, and MrViorel Micula, European Drinks, Rieni Drinks, Transilvania General Import-Export and West Leasing International, in Case T‑704/15, each brought an action pursuant to Article263 TFEU for annulment of the decision at issue. The General Court granted the Kingdom of Spain and Hungary leave to intervene in support of the form of order sought by the Commission. In application of Article68 of its Rules of Procedure, the General Court joined the three cases for the purposes of the decision closing the proceedings.

35The General Court found that in support of their action, the appellants raised seven pleas in law. The first plea alleged the Commission’s lack of competence to adopt the decision at issue and an abuse of power as well as failure properly to apply Article351 TFEU and general principles of law. The second plea alleged infringement of Article107(1) TFEU. The third plea alleged a breach of the principle of the protection of legitimate expectations. The fourth plea alleged an error in the assessment of the compatibility of the measure at issue with the internal market. The fifth plea alleged an error in the determination of the beneficiaries of the aid and failure to state reasons. The sixth plea alleged an error of law relating to the recovery of the aid. Lastly, the seventh plea alleged a breach of the right to be heard and infringement of Article108(3) TFEU and Article6(1) of Regulation No659/1999.

36By the judgment under appeal, the General Court upheld the first part of the first plea raised in Case T‑704/15 and the first part of the second plea raised in Cases T‑624/15 and T‑694/15 alleging, first, the Commission’s lack of competence to adopt the decision at issue under Article108 TFEU and, secondly, the absence of advantage, within the meaning of Article107(1) TFEU, conferred by the payment of damages in that, in particular, the purported advantage was granted before Romania’s accession to the European Union. It held, in essence, in paragraphs59 to 93 of that judgment that, by adopting the decision at issue, the Commission had retroactively applied the powers which it held under Article108 TFEU and Regulation No659/1999 to events predating Romania’s accession and that the Commission could not therefore classify the measure at issue, namely– according to that decision– the payment of compensation awarded by the arbitral tribunal by way of compensation for the damage that the arbitration applicants allegedly suffered due to the repeal by that State of the tax incentives scheme at issue, as ‘State aid’ within the meaning of Article107(1) TFEU.

37In addition, the General Court upheld the second part of the second plea raised in Cases T‑624/15 and T‑694/15, and the first part of the second plea raised in Case T‑704/15, alleging, in essence, the erroneous legal classification of the award of compensation by the arbitral tribunal as an ‘advantage’ and ‘aid’ within the meaning of Article107 TFEU. In that regard the General Court essentially held, in paragraphs98 to 111 of the judgment under appeal that, since EU law did not apply ratione temporis and the Commission lacked competence under Article108 TFEU and Regulation No659/1999, the decision at issue was unlawful in so far as it classified as an ‘advantage’ and ‘aid’, within the meaning of Article107(1) TFEU, the award of that compensation, at least in respect of the period predating the entry into force of EU law in Romania.

38Consequently, the General Court annulled the decision at issue in its entirety, without examining the other parts of those pleas or the other pleas.