The case asks whether Romania can execute an intra-EU arbitration award when the compensation may itself amount to incompatible state aid.
Commission tests the award under state-aid rules
The European Commission has opened an in-depth investigation into an arbitral award requiring Romania to compensate ten investors in renewable energy. The award, issued on 20 February 2024, totals €42.2 million, plus interest and other costs. The investors had put money into five photovoltaic solar plants that benefited from Romania’s green-certificate support scheme. They sought compensation for support they say they would have received if the scheme had not been changed. The Commission’s preliminary view is that both the award and its execution constitute state aid under Article 107(1) of the Treaty on the Functioning of the European Union, and that the aid is incompatible with the internal market. No final conclusion has been reached.
Why execution matters as much as the original support
Romania established its renewable-electricity support scheme under state-aid rules in July 2011 and amended it in 2013, 2014 and later. The Commission approved amendments in May 2015 and December 2016. After the changes, the investors began arbitration proceedings against Romania. An arbitral tribunal found that Romania had breached the Energy Charter Treaty and ordered compensation for the losses claimed by the investors. Romania notified the Commission of the award and said it had made a payment into an account opened in the beneficiaries’ name. The state-aid question therefore concerns not only the original support mechanism, but also whether paying an award can confer a selective economic advantage that requires Commission approval.
EU law limits intra-EU investment arbitration
The Commission will also examine whether the award and its execution breach EU rules on the jurisdiction of the Court of Justice of the European Union and the autonomy of the EU legal order. The dispute was intra-EU, involving investors and a member state. In Achmea, decided in 2018, the Court held that intra-EU investor-state arbitration based on bilateral investment treaties is contrary to EU law. In 2021, Komstroy held that the Energy Charter Treaty forms part of EU law and that its arbitration clause cannot apply to intra-EU disputes. The EU’s withdrawal from that treaty took effect on 27 June 2025. Romania withdrew on 22 May 2026, with effect from 23 May 2027.
The procurement lesson is legal certainty around support
The investigation gives Romania and interested third parties an opportunity to submit observations, without prejudging the outcome. For public buyers and businesses, the transferable issue is how changes to a publicly backed economic arrangement are designed, approved and preserved over time. The Commission says reliable and transparent renewable-support rules are important to investor confidence and to investment needed for decarbonisation. EU law does not remove investor protection: claims seeking annulment of national measures or financial compensation fall to national courts, while a Commission state-aid decision can be challenged before the General Court. The Renewable Energy Directive also now requires support not to be revised in a way that harms granted rights or the economic viability of existing projects; that protection did not exist in 2013.
IN NUMBERS
The Commission’s review is not a ruling that Romania must recover the payment, nor a final finding that the investors’ claims fail. It will determine whether the award and its execution comply with EU state-aid and treaty rules. The outcome could inform how public authorities frame future renewable-support schemes and other procurement-linked arrangements where policy changes may affect existing investment.
Reported from economica.net, 2026-10-06. The Tender Wire is published by Otnox.
