EU State Aid Law
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EU State Aid Law

Emerging Trends at the National and EU Level

Edited by Pier L. Parcu, Giorgio Monti and Marco Botta

The recent State Aid Modernization has decentralized the enforcement of State aid law. In particular, under the General Block Exemption Regulation a number of aid schemes do not require the preventive “check” by the European Commission, while national courts play a growing role in private enforcement of State aid law. This insightful book analyzes the enforcement of State aid law in the aftermath of the State Aid Modernization, identifying a number of emerging trends at the national and EU level.
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Chapter 8: A recipe for confusion: parallel treaties and parallel proceedings in State aid cases

Adam Scott

Abstract

National courts may find it difficult to navigate the application of EU State aid rules. Their task can be complicated when international treaties, in addition to the EU treaties, come into play. The chapter discusses the interaction of national, EU and public international law in the ongoing Achmea and Micula sagas. Both cases concern bilateral investment treaties (BITs) concluded among EU Member States before joining the Union, but usually remained in force in the post-EU accession phase as well. As recently recognized by the Court of Justice in Achmea, BITs may breach EU law, causing a breach of the principles of nondiscrimination and freedom of establishment. Similarly, the question currently discussed in Micula is whether and to what extent the damage awarded by an arbitral tribunal to an investor due to a breach of BIT may be considered an unlawful aid, in breach of EU State aid rules. The chapter analyses the parallel proceedings that Achmea and Micula have recently raised in a number of national courts (in Romania, UK and Germany), EU courts (the European Court of Justice and General Court) and international arbitral tribunals.

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