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KW v Autonome Provinz Bozen: Setting Out the Fundamentals on the Duty to Recover Illegally Granted State Aid · Joined Cases C-102/21 and C-103/21 KW v Autonome Provinz Bozen · Annotation by Stig Eidissen journal article

Annotation on the Judgment of the Court of Justice (Ninth Chamber) of 7 April 2022 in Joined Cases C-102/21 and C-103/21 KW v Autonome Provinz Bozen

Stig Eidissen

European State Aid Law Quarterly, Volume 21 (2022), Issue 4, Page 415 - 418

The preliminary ruling of the Court of Justice in Joined Cases C-102/21 and C-103/21 addressed the expiry date of a Commission decision to authorise aid, and the obligation of Member States to recover illegally granted State aid. The Court of Justice reiterated its previous case-law setting out the duty of public authorities to recover illegally granted State aid on their own initiative. The judgment sets out the fundamentals of both the Commission’s and national authorities’ duty to recover State aid granted in violation of the standstill obligation clearly and concisely. Perhaps more novel, the judgment holds that Member States may consider GBER exemptions to limit the recovery sum.

ICSID Trumps State Aid in the UK but Uncertainty Remains Regarding Enforcement of New York Convention Awards in post-Brexit UK journal article

Ana Stanič

European State Aid Law Quarterly, Volume 19 (2020), Issue 2, Page 165 - 171

On 19 February 2020, the UK Supreme Court unanimously held that by virtue of Article 351 TFEU UK’s obligations under the ICSID Convention trump its duty of sincere co-operation under Article 4(3) TFEU to give effect to a State aid decision of the European Commission. In doing so, the UK Supreme Court also made clear that ICSID arbitral awards rendered by arbitral tribunals established pursuant to intra-EU BITs and ECT will be enforced in the UK. Whether in post-Brexit UK enforcement of intra-EU BITs and ECT arbitral awards will be refused on the grounds of being contrary to EU State aid law if sought pursuant to the terms of the New York Convention remains unclear given that State aid currently forms part of the on-going negotiations between the UK and EU regarding their future relations. Keywords: Micula, State aid, ISDS, Achmea, duty of sincere cooperation, public policy

Micula and Others v Romania   ∙ [2017] EWHC 31 (Comm) ∙ Annotation by Kai Struckmann, Genevra Forwood, Aqeel Kadri and Adam Wallin journal article

Annotation on the Judgment of the High Court of England and Wales of 20 January 2017 in Micula and Others v Romania [2017] EWHC 31 (Comm)

Kai Struckmann, Genevra Forwood, Aqeel Kadri, Adam Wallin

European State Aid Law Quarterly, Volume 16 (2017), Issue 2, Page 316 - 321

While the General Court considers the validity of the European Commission’s decision in the Micula case finding that “the payment of the compensation awarded by” an ICSID arbitral tribunal constitutes incompatible State aid, national courts in the EU (and the US) are also wrestling with different, but related, issues in proceedings to enforce the underlying arbitral award. The key question in these proceedings is whether the Commission Decision stands in the way of enforcement in a (Member) State which is not the addressee of the decision. In the judgment discussed here, the High Court found that the arbitral award constituted res judicata and that it had not been satisfied. However, the High Court also considered that it could not decide a number of issues (including the interpretation of the CJEU’s jurisprudence in Kapferer, the application of Article 351 TFEU and the concept of imputability) without risking a conflict with questions currently pending before the General Court. Consequently the High Court decided to stay the enforcement proceedings, pending the outcome of annulment action before the General Court. The High Court reached few firm conclusions. Underlying this case is the tension between international obligations owed under the multilateral ICSID Convention and the EU Treaties, and which take precedence. One of the most striking features of the High Court judgment is its acceptance of the contentions of Romania and the Commission that essentially any substantive finding of EU law would give rise to a significant risk of conflict with ongoing proceedings in the EU Courts to annul the Final Decision. Keywords: State Aid and Arbitration; Article 351 TFEU; Res Judicata; Article 4 TEU – Duty of Sincere Cooperation.

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