España will invoke this decision in other international arbitrations
BRUSSELS, 24 (EUROPA PRESS)
The European Commission has ordered Spain on Monday not to pay «any compensation» based on the arbitral award that condemned it in 2018 to compensate the Luxembourg fund Antin for the cut in renewable energy subsidies, after several years of investigation that led Brussels to conclude that such arbitration constitutes illegal State aid.
The EU services thus ask Spain «to ensure that no payment, execution, or execution of the arbitral award takes place» and emphasize the «obligation of national judges to help Spain ensure compliance» with the decision, «even taking appropriate measures» to prevent the award from being recognized in third countries.
The European Commission launched an in-depth investigation into the case in July 2021 after the International Centre for Settlement of Investment Disputes (ICSID) granted Antin the right to compensation of 101 million euros for the modification in the renewable energy subsidy regime decided by the government of Mariano Rajoy.
Brussels’ doubts focused on the compatibility of the arbitration with the principles of mutual trust and autonomy of EU law, understanding that arbitration between investors and States, when applied among EU Member States, undermines the legal recourse system provided for in the EU Treaties to resolve such disputes.
The EU services also analyzed whether the ruling could also generate discrimination among investors based on their nationality and their ability to resort to international arbitration, as Spanish investors do not have the possibility to bring an action before an arbitral tribunal.
As explained by the Ministry for Ecological Transition and Demographic Challenge in a statement, this is the first decision by Brussels on renewable energy arbitrations in which Spain faced international investors who considered the cuts to renewable energy premiums approved by the previous government in 2013 to be illegal.
In this way, the Government highlights that Brussels’ conclusion, processed as a «pilot,» supports Spain’s position, which has so far «not paid any amount» for the various awards issued, pending the completion of the analyses. It also emphasizes that the Commission is the only competent authority to pronounce on State aid matters.
Therefore, Spain will invoke this decision in the various foreign jurisdictions where the State is judicially opposing the recognition and enforcement of intra-European arbitral awards.
51 ARBITRATIONS WITH CLAIMS TOTALING 10.635 BILLION
According to data provided by the Ministry, under the Energy Charter Treaty, international investors have filed 51 arbitrations against the Kingdom of Spain for the cuts applied to renewables, with claims totaling 10.635 billion.
Of the 43 cases with a judicial decision, Spain has won ten, although there are eight others pending an award, three were annulled, and three were abandoned by the claimants. While of the remaining lost cases, as pointed out by the Ministry, Spain has managed to have the compensations reduced by 85% from the amount claimed.