Obbligo di recupero degli aiuti di stato illegittimi e (previo) giudicato arbitrale di condanna al risarcimento del danno ...da revoca degli aiuti.

The case of Micula v Romania epitomises the conflict between national legislation enacted to encourage fo- reign investments (e.g. through tax exemptions) and the constraints EU Member states are subject to under EU competition law, namely the prohibition of State aids. The essay analyses in depth the procedural law issues arising out of a typical multi-forum litigation: from the ICSID-based arbitration, in accordance with the dispute settlement clause in the bilateral invest- ment treaty, leading to a final award in favour of the investor, to the European Commission decision quali- fying any implementation or execution of the final award as an illegal State aid and compelling the losing State of Romania to recover any sum paid to the inve- stor in obeiance to the award. The ultimate issue is whether the national courts of EU Member states, which may likely be requested to enforce final interna- tional awards against their own or other Member sta- tes, shall have regard to the fundamental principle of res judicata, also rooted in the European legal order, or shall disregard finality of the award and pay deferen- ce to a subsequent Commission decision (issued post rem iudicatam and only binding upon the addressed Member state) and, therefore, deny the enforceability of the award (and on which grounds). An answer may be found in the case law of the European Court of Justice. It is arguable, however, that Lucchini, which was relied upon by the Commission, may succes- sfully support the Commission’s stance in this case.