On 29 July 2026, the European Commission announced that it had commenced an in-depth investigation into whether an arbitration award requiring Romania to compensate ten energy investors complies with the EU state aid rules.
The award concerns amendments to a Romanian renewable electricity support measure. The original scheme supported electricity generation from renewable sources through green certificates and had been approved by the Commission. The Commission also approved subsequent amendments to the scheme made in 2015 and 2016.
Ten companies invested in five solar photovoltaic power plants which benefited from the scheme. They subsequently commenced arbitration against Romania, seeking compensation for the support they said they would have received if the scheme had not been amended.
The arbitral tribunal held Romania had breached the Energy Charter Treaty (“<span class="news-text_medium">ECT</span>”). On 20 February 2024, it ordered Romania to pay the investors EUR 42.2 million, together with interest and additional costs, in respect of losses allegedly resulting from the amendments to the scheme.
Romania notified the award to the Commission under the state aid rules. It also informed the Commission it had made a payment into an account opened in the names of the award’s beneficiaries.
The Commission’s provisional assessment is both the arbitral award and its implementation constitute state aid under Article 107(1) of the Treaty on the Functioning of the European Union (“<span class="news-text_medium">TFEU</span>”) and therefore the aid is incompatible with the internal market.
A measure which infringes other provisions of EU law cannot be found compatible under the state aid framework. The Commission will therefore consider whether the award and its implementation breach Article 19(1) of the Treaty on European Union (“<span class="news-text_medium">TEU</span>”), Articles 267 and 344 TFEU and the general principle of the autonomy of the EU legal order.
These questions arise because the arbitration was an intra-EU dispute. The Court of Justice of the European Union has previously held intra-EU investor-state arbitration under bilateral investment treaties is incompatible with EU law in <span class="news-text_italic-underline">Slovak Republic v Achmea BV (Case C-284/16)</span>. It has also held the ECT arbitration clause cannot apply to disputes between EU investors and EU Member States in <span class="news-text_italic-underline">Republic of Moldova v Komstroy LLC (Case C-741/19)</span>.
The investigation will assess both the state aid implications of satisfying the award and the compatibility of the intra-EU arbitration with the EU legal order. It therefore engages the continuing tension between investor-state arbitration under the ECT and the Court of Justice’s case law on EU legal autonomy.
