The European Commission has concluded that the arbitration award requiring Spain to pay compensation to Antin constitutes illegal State aid. The award concerned changes to the support scheme for renewable energy.

The Commission instructed Spain not to make any payments based on this arbitration award. National judges must ensure that the award is not enforced.

The Commissions Investigation

In July 2021, the Commission opened an in-depth investigation into the arbitration award, granted in June 2018. Spain had notified this award to the Commission for assessment.

Antin had invested in renewable energy projects in Spain. After changes in 2013 to the support scheme, Antin claimed compensation for lost support. An arbitral tribunal awarded compensation to Antin in 2018, but the Commission deemed this compensation incompatible State aid.

The Commission emphasized that intra-EU arbitration is contrary to EU law, as confirmed by the Court of Justice in the Achmea and Komstroy cases.

Spain must continue to resist attempts to enforce the arbitration award.

Background

The Court of Justices rulings in the Achmea case in 2018 and the Komstroy case in 2021 confirmed that intra-EU arbitration is contrary to EU law. Member States have agreed that the Energy Charter Treaty does not apply to intra-EU disputes.

For more information: the non-confidential version of the decision will be made available under case number SA.54155 in the State aid register on the Commissions website.