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Taxation, State Aid Rules and Arbitral Courts:

A BIT of a Mess in the Micula Saga

Begoña Pérez Bernabeu

DOI https://doi.org/10.21552/estal/2020/3/9

Keywords: arbitral award, Bilateral Investment Treaty (BIT), repeal of tax incentive, damages compensation, enforcement

In its long-awaited ruling on 18 June 2019, the General Court (GC) annulled the Commission's State aid Decision in the Micula case where the Commission considered that the damages payment by Romania of an ICSID award constituted State aid. In the GC's opinion, the payment of the adverse arbitration award by a Romania does not constitute illegal State aid. Unfortunately, the GC's reasoning is tied to the timing of the measure taken by Romania, which took place before Romania acceded to the EU, and the rest of the compelling substantive pleas were not assessed. Moreover, the GC did not rule on whether the compensation of the withdrawal of the tax incentives for the post-accession period constitutes State aid given that the Commission failed to distinguish between compensation for the period predating accession and post-accession. For this reason, this judgment does not put an end to the Micula saga as long as the Commission has lodged an appeal before the Court of Justice.
Keywords: arbitral award, Bilateral Investment Treaty (BIT), repeal of tax incentives, damages compensation, enforcement

Begoña Pérez Bernabeu, Tax Law Professor, University of Alicante (Spain). Member of the Research Excellence Group PROMETEO/2020/092. For correspondence: <mailto:bperez@ua.es>.


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