Brussels Cityscape from Monts des Arts at dusk, Belgium

On 12 March 2019, the Brussels Court of Appeal suspended the enforcement of an arbitral award that was considered de facto illegal State aid by the European Commission, pending a final decision of the EU General Court. It also requested a preliminary ruling from the European Court of Justice (“ECJ”) regarding the impact of EU decisions on the Member States’ obligation to enforce arbitral awards.

The case concerned the enforcement of economic benefits derived from a Romanian incentive programme, based on a bilateral investment treaty with Sweden. Romania revoked the treaty prematurely to comply with EU State aid rules, as part of the process of accession to the EU. The Micula brothers, two Swedish investors who had suffered damages as a consequence of the withdrawal, challenged Romania’s decision in arbitration.

In 2013, an ICSID tribunal held that Romania had breached its obligations under the investment treaty and awarded the Micula brothers 178 million euros in compensation, to be borne by Romania. The award was later upheld in a final ICSID annulment procedure.

The European Commission, however, ruled in 2015 that enforcement of the arbitral award would grant the Micula brothers advantages equivalent to the illegal State aid programme and ordered Romania to recover the compensation. The Micula brothers initiated annulment proceedings against this decision before the EU General Court, which are still pending.

In Belgium, one of the Micula brothers had obtained an authorization from the court to seize an amount of 85 million euros in compensation at Eurocontrol, a Belgian debtor of Romania’s air traffic services administration Romatsa. The seizure was later lifted by the Court of First Instance, who held that the arbitral award could not serve as a basis for the seizure, considering the Commission’s order to recover the payment.

This case was then brought before the Belgian Court of Appeal, which took a different approach. The Court first held that the arbitral award was final and therefore constituted a valid title for execution, including by means of a seizure. It confirmed that rulings of the Commission, and appeals thereto, in principle do not have suspensive effect. The Court then acknowledged that the Commission’s ruling created a conflict between the obligation to respect an enforceable ICSID award and the obligation to comply with EU decisions.

The Court decided to suspend its judgement until the EU General Court passes a final decision on the State aid matter, considering the need for legal certainty and respect for EU legislation. It finally requested a preliminary ruling from the ECJ on whether the Commission’s qualification of the award as illegal State aid also covers payment recovered through enforcement proceedings, and requested clarification on the permission or obligation of Member States to disregard their international obligations under the ICSID Convention on the basis of a non-final ruling of the Commission.

In conclusion, the Belgian Court of Appeal decided that, although it was strictly not obligated to suspend the enforcement of the arbitral award, general EU principles required it to stay its judgement and await a final decision from the EU General Court and the ECJ.