Brussels Court of Appeal, 17 Civil Affairs Chamber, 2016/AR/393 and 2016/AR/394, 12 March 2019
On 12 March 2019, the Brussels Court of Appeal halted an enforcement of the award in the IoanMicula and others v. Romaniacase (“Award”) until the Europeaan Court of Justice (“CJEU”) issues a preliminary ruling on whether the enforcement of the Award will contravene the European Union legislation on state aid measures.
The underlying dispute arose from the frustration of legitimate expectations of Swedish investors (Claimants) by Romania’s premature revocation of economic incentives for investors. As pursuant to Article 107 (1) of the Treaty on the Functioning of the European Union, those economic incentives constituted illegal state aid, Romania had to withdraw the scheme four years before the scheduled expiry for the purpose of its accession to the EU.
On 11 December 2013, the International Centre for Settlement of Investment Disputes (ICSID tribunal) held Romania liable for the violation of fair and equitable treatment standard set out in Article 2(3) of the 2002 Swedish-Romanian bilateral investment treaty and awarded Claimants damages in sum of €178 million. Particularly, despite having observed that Romania’s repeal of economic incentives favoring Claimants’ food production business were “reasonably tailored to the pursuit of a rational policy (i.e. EU accession),” the Tribunal yet found that Romania frustrated Claimants’ legitimate expectations. The grounds were the following: the undertaken incentives created specific assurances that Claimant would benefit until the scheduled date, and Claimant relied on those assurances.
In 2015, the European Commission adopted a decision finding the enforcement of the Award illegal, as it would reinstate state aid incompatible with the EU legislation. In the meantime, Romania requested to set aside or grant a stay of the enforcement of the Award before the England and Wales High Court (EWHC). Both the EWHC and subsequently the English Court of Appeal refused Romania’s application.
A year later, the ICSID Annulment Committee upheld the Award. One of the Claimants, Viorel Micula, managed to obtain attachment against €85 million in funds, which Eurocontrol – the Brussels-based international air traffic management body – owed to Romania. Nonetheless, in January 2016, the Brussels Court of First Instance lifted the attachment following the Decision. On 23 January 2019, the Nacka District Court in Stockholm also refused to enforce the Award as incompatible with the EU law in light of the Decision.
In its latest decision dated from 12 March 2019, while asking the CJEU for a preliminary ruling, the Brussels Court of Appeal observed that the Decision created a normative conflict for Romania. On the one hand, Romania had to enforce the Award under the ICSID Convention. On the other hand, such enforcement would be contrary to the EU legal framework.
The questions that the Brussels Court of Appeal presented before the CJEU are the following:
1) whether the Decision is applied to the enforcement of the Award by other EU member states than Romania;
2) whether a national court of an EU member state other than Romania seized with a request to enforce the Award is obliged to refuse such enforcement on the ground that a non-final Decision adopted after the award was rendered requires so as contrary to the EU legislation;
3) whether the EU law, including the principle of sincere cooperation and res judicata, requires from a member state other than Romania to disregard its international obligations under the ICSID Convention based on the Decision.
Higher School of Economics, LLM student in international trade, finance and economic integration, Moscow
1) Ioan Micula, Viorel Micula, S.C. European Food S.A., S.C. Starmill S.R.L. and S.C. Multipack S.R.L. v. Romania, ICSID Case No. ARB/05/20, Award, 11 December 2013.
2) State aid SA.38517(2014/C) (ex 2014/NN) – Romania Implementation of Arbitral award Micula v Romania of 11 December, 2013, http://ec.europa.eu/competition/state_aid/cases/254586/254586_1595781_31_11.pdf.
3) Andrew Cannon, Joel Halliday, European Union: English Court Of Appeal Refuses Micula Appeal Against Stay Of ICSID Award But Orders Romania To Provide £150m Security,October 15, 2018.
4) Tom Jones, Sebastian Perry, Belgian court seeks guidance from ECJ on Micula award, March 28, 2019, Global Arbitration Review, https://globalarbitrationreview.com/article/1189423/belgian-court-seeks-guidance-from-ecj-on-micula-award.
5) Garrigues,International Arbitration Newsletter – February 2019 | Regional Overview: Europe, February 19, 2019, https://www.lexology.com/library/detail.aspx?g=f790609f-9e8a-4b28-a3ea-63ece9294191.