Information;Order — ECLI:EU:C:2022:749
Date: 2022-09-21
Language of the case: French
Court formation: Tenth Chamber
Subject matter: State aids;Competition
Procedure: Reference for a preliminary ruling
Origin: Belgium

Summary C-333/19 — 1 
Case C-333/19 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice 
Date lodged:  
24 April 2019 
Referring court:  
Cour d’appel de Bruxelles (Belgium) 
Date of the decision to refer:  
12 March 2019 
Appellants:  
DA  
FC 
S. C. European Food S.A.  
S. C. Starmill S.R. L.  
S. C. Multipack S.R. L.  
Respondents:  
Romanian Air Traffic Services Administration (Romatsa)  
Romania  
European Commission 
European Organisation for the Safety of Air Navigation 
(Eurocontrol) 
  
I. Subject matter and circumstances of the dispute 
1 On 11 December 2013, an arbitration tribunal established under the ICSID 
Convention (see below) made an award ordering Romania to pay to DA, to FC 
and to the trading companies European Food S.A, Starmill S.R. L. and Multipack 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-333/19 
 
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S.R.L. compensation of an overall principal sum of RON 376 433 229 (around 
EUR 178 000 000), plus interest. 
2 Following the dismissal on 26 February 2016 of an application brought before the 
ad hoc committee of the International Centre for Settlement of Investment 
Disputes (ICSID) for the annulment of the award, no right of further appeal lay 
against the award. 
3 The European Commission had intervened before the arbitration tribunal as 
amicus curiae and, on 26 May 2014, pursuant to Article 11(1) of Council 
Regulation (EC) No 659/1999 laying down detailed rules for the application of 
Article 108 TFEU, had adopted Decision C (2014) 3192 ordering Romania to 
suspend any action which might lead to the implementation or execution of the 
part of the award that had not yet been paid, as that would constitute unlawful 
State aid, until the Commission had taken a final decision on the compatibility of 
that State aid with the internal market. 
4 By Decision (EU) 2015/1470 of 30 March 2015 on State aid SA.38517 (2014/C) 
(ex 2014/NN) implemented by Romania — Arbitral award of 11 December 2013 
(OJ 2015 L 232, p. 43), the Commission decided that the payment of 
compensation under the arbitral award of 11 December 2013 to the economic unit 
comprising DA, FC, and the companies European Food, Starmill and Multipack 
constituted State aid within the meaning of Article 107(1) of the Treaty which was 
incompatible with the internal market. That decision in essence prohibited 
Romania from paying any amount whatsoever under the award of 11 December 
2013.  
5 Actions were brought for the annulment of the Commission’s decision and are 
currently pending before the General Court of the European Union (see, in 
particular, cases T-624/15 (OJ 2016 C 16, p. 45), T-694/15 (OJ 2016 C 38, p. 69) 
and T-704/15 (OJ 2016 C 68, p. 30)). 
6 On 19 August 2015, DA served on Romania the arbitral award endorsed with an 
enforcement order issued by the registry of the Cour d’appel de Bruxelles (Court 
of Appeal, Brussels) pursuant to the ICSID Convention. 
7 On 9 September 2015, DA served an attachment order in Belgium on Eurocontrol 
over all the sums that Eurocontrol owed or would in future owe to Romania or to 
Romatsa (the Romanian State undertaking for air traffic) in order to obtain 
payment of the sum of EUR 85 066 428.42. 
8 On 23 and 24 September 2015, Romatsa and Romania applied to the Tribunal de 
première instance francophone de Bruxelles (Brussels Court of First Instance 
(French-speaking)), to have the executive attachment order set aside. The 
Commission intervened voluntarily under Article 23a of Regulation (EC) 
No 659/1999 in support of the forms of order sought by Romatsa and Romania.  
EUROPEAN FOOD AND OTHERS 
 
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9 By judgment of 25 January 2016, the Tribunal de première instance francophone 
de Bruxelles (Brussels Court of First Instance (French-speaking)) in essence 
ordered the lifting of the executive attachment order served on Eurocontrol against 
the Romanian State. 
10 DA, FC and the creditor companies appealed against that judgment on 
29 February 2016. 
II. Provisions at issue 
EU law 
11 Article 288 TFEU reads as follows: 
‘To exercise the Union's competences, the institutions shall adopt regulations, 
directives, decisions, recommendations and opinions. 
… 
A decision shall be binding in its entirety. A decision which specifies those to 
whom it is addressed shall be binding only on them.’ 
The Convention on the Settlement of Investment Disputes between States and 
Nationals of Other States (signed in Washington under the auspices of the World 
Bank on 18 March 1965 and ratified in Belgium by the Law of 17 July 1970)  
12 Article 1 provides: 
‘There is hereby established the International Centre for Settlement of Investment 
Disputes’ (abbreviated to ‘ICSID’). 
13 Article 54 provides: 
‘(1)  Each Contracting State shall recognise an award rendered pursuant to this 
Convention as binding and enforce the pecuniary obligations imposed by that 
award within its territories as if it were a final judgment of a court in that State. A 
Contracting State with a federal constitution may enforce such an award in or 
through its federal courts and may provide that such courts shall treat the award as 
if it were a final judgment of the courts of a constituent state. 
(2) A party seeking recognition or enforcement in the territories of a Contracting 
State shall furnish to a competent court or other authority which such State shall 
have designated for this purpose a copy of the award certified by the Secretary-
General. Each Contracting State shall notify the Secretary-General of the 
designation of the competent court or other authority for this purpose and of any 
subsequent change in such designation. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING — CASE C-333/19 
 
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(3) Execution of the award shall be governed by the laws concerning the 
execution of judgments in force in the State in whose territories such execution is 
sought’.  
III. Arguments of the parties 
14 DA, FC and the creditor companies are, in essence, asking the Cour d’appel de 
Bruxelles (Court of Appeal, Brussels) to order the restoration of the executive 
attachment order to guarantee an overall sum which is now fixed at 
EUR 281 718 067.10. 
15 DA submits in particular that Commission Decision (EU) 2015/1470 of 10 March 
2015 does not, as such, prohibit the enforcement of the award in Belgium.  
16 According to DA, for advantages to be categorised as State aid, they must, first, be 
granted directly or indirectly through State resources and, second, be imputable to 
the State (judgment of 16 May 2002, France v Commission, C-482/99, 
EU:C:2002:294, paragraph 24). That judgment clearly establishes that the transfer 
of State resources alone is insufficient to allow aid to be categorised as State aid. 
The imputability criterion is a criterion in its own right. 
17 DA also cites the judgment of 27 March 1980, Denkavit italiana (61/79, 
EU:C:1980:100, paragraph 31) according to which a State aid scheme ‘thus refers 
to the decisions of Member States by which the latter, in pursuit of their own 
economic and social objectives, give, by unilateral and autonomous decisions, 
undertakings or other persons resources or procure for them advantages intended 
to encourage the attainment of the economic or social objectives sought’ (the 
appellant’s underlining). 
18 DA also recalls that, in its case-law, the Court of Justice has emphasised not only 
the need for a transfer of State resources, or general control by the State of the 
undertaking, but also the actual involvement of the State in the adoption of the 
disputed measures: ‘It is also necessary to examine whether the public authorities 
must be regarded as having been involved, in one way or another, in the adoption 
of those measures’ (judgment of 16 May 2002, France v Commission, C-482/99, 
EU:C:2002:294, paragraph 52). 
19 In the present case, enforcement in Belgium is not imputable to Romania.  
20 It is thus clear from the text of the Commission’s decision that execution of the 
arbitral award constitutes State only aid if such an action is imputable to Romania, 
that is to say, if Romania voluntarily complies with the arbitral award. According 
to DA, it is quite simply incorrect to claim that both the operative part of the 
Commission’s decision and the grounds on which it is based also apply to 
enforcement ordered by a non-Romanian court. If Romania is ordered and forced 
to implement the arbitral sentence, that action is not imputable to Romania and 
there is therefore no infringement by Romania of the Commission’s decision. 
EUROPEAN FOOD AND OTHERS 
 
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21 For its part, the Romanian State is, in essence, asking the Cour d’appel de 
Bruxelles (Court of Appeal, Brussels) to declare the appeals inadmissible and 
unfounded and, in the alternative, to stay proceedings pending judgment of the EU 
Courts in the actions brought against the Commission’s decision of 30 March 
2015. 
22 The Commission is asking for the appeals to be declared unfounded.  
IV. Assessment by the Cour d’appel de Bruxelles (Court of Appeal, 
Brussels) 
23 The Cour d’appel de Bruxelles (Court of Appeal, Brussels) first of all rejects 
various grounds of inadmissibility together with the Romanian State’s claim that it 
is immune from jurisdiction. Having accepted the arbitration proceedings and 
having brought third party proceedings against the attachment order, Romania 
agreed to submit the dispute to the Belgian court responsible for attachment 
proceedings, and to the Cour d’appel de Bruxelles (Court of Appeal, Brussels), 
waiving its immunity from jurisdiction. 
24 The Cour d’appel de Bruxelles (Court of Appeal, Brussels) then notes that the 
arbitral award is definitive and that no right of further appeal lies against it. It is a 
lawful writ of execution in itself. The basis for service of the attachment order was 
an award endorsed with an enforcement order which, under Article 54 of the 
ICSID Convention, is to be recognised and enforced by all Contracting States, of 
which the Kingdom of Belgium is one.  
25 The Cour d’appel de Bruxelles (Court of Appeal, Brussels) notes, however, that 
Commission Decision (EU) 2015/1470 of 10 March 2015 presents a major 
obstacle to execution of the arbitral award by the Romanian State. The Cour 
d’appel de Bruxelles recalls that a fait du prince is, in effect, an external cause 
which acts as a discharge and which can justify non-payment by an ordinarily 
prudent and reasonable debtor to a creditor who is in possession of a writ of 
execution.  
26 In that decision, the Commission prohibited Romania from paying the sums due 
under the arbitral award as such a payment would represent State aid incompatible 
with the internal market.  
27 According to Article 288 TFEU, decisions are binding in all Member States. 
However, that decision did not exist at the time when the arbitration tribunal made 
the award which constitutes the writ of execution. Furthermore, Commission 
Decision (EU) 2015/1470 of 30 March 2015 is the subject of actions before the 
EU courts. 
28 There is at present a genuine risk of conflict between a decision of the court 
responsible for attachment proceedings and the court ruling on appeals in 
attachment proceedings and a decision of the European Union, namely the 
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decision of the Commission which is relied on as a fait du prince in the dispute 
over the enforcement of an ICSID arbitral award. 
29 The question of whether execution of the award by Romania amounts to voluntary 
compliance and State aid is a matter of serious dispute.  
V. Questions referred for a preliminary ruling 
30 It is therefore appropriate to stay the proceedings, in order to ensure legal certainty 
and to avoid the risk of inconsistent decisions, pending a decision by the EU 
Courts on the actions for annulment of the decision of 30 March 2015 and pending 
a response from the Court of Justice of the European Union to the following 
questions: 
1.  Is Decision (EU) 2015/1470 of the European Commission of 30 March 2015 
on State aid SA.38517 (2014/C) (ex 2014/NN) to be understood as referring to 
payments due from Romania even in a case where payments are recovered against 
Romania as a result of proceedings to enforce the ICSID arbitral award of 
11 December 2013 brought before the courts of a Member State other than 
Romania? 
2. Does EU law itself automatically require a court of a Member State (other 
than Romania), before which an action is brought to oppose proceedings for the 
enforcement of an ICSID arbitral award which has the force of res judicata 
according to the national procedural rules of that Member State, to reject that 
award, for the sole reason that a non-definitive decision of the European 
Commission adopted after the date of the award considers enforcement of that 
award to be contrary to the EU State aid regime? 
3. Does EU law, in particular the principle of cooperation in good faith and the 
principle of res judicata, allow the national court of a Member State (other than 
Romania) not to comply with its international obligations under the ICSID 
Convention in a situation where the European Commission has adopted a decision 
after the date of that award, under which enforcement of the award is regarded as 
contrary to the EU State aid regime, even when the European Commission 
participated in the arbitration proceedings (including the action for annulment of 
the award) and put forward its case in relation to the EU State aid regime?