On 25 June 2025, the European Commission published in the Official Journal of the European Union the non-confidential version of its decision on the 2018 arbitration award in favor of Antin versus Spain, based on the Energy Charter Treaty (ECT). It concluded that the award was state aid that was incompatible with the EU domestic market.
The dispute originated in investments made by Antin in the Spanish solar sector, under an aid scheme adopted in 2007 and revised in 2013. The ICSID arbitration award, which was favorable to the investor, ordered Spain to pay several hundred million euros.
In classifying the award as state aid, the Commission relied in particular on the Micula decision handed down by the EU Court of Justice in October 2024. However, the originality of this decision lies above all in its final chapter, entitled “Prevention of the implementation of the award and recovery”. The Commission does not merely provide for the recovery of any sums that may be paid: it also intends to prevent any enforcement, including in Member States and beyond.
Two excerpts from the Commission’s decision are particularly striking. On the one hand, paragraph 286 instructs national courts, including those of non-Spanish Member States, to “refrain from recognizing, enforcing, or implementing the award and to take all necessary measures to prevent the recognition, enforcement or implementation of the award (for example, by ordering companies under their jurisdiction to stop any attempt to get the award recognized or enforced in other jurisdictions, and by making them pay penalties if they don’t follow this order)“. Furthermore, the third point of the operative part requires Spain to take all necessary measures to prevent Antin—or any assignee of the award—from seeking its enforcement, whether within the EU or in third countries.
This decision is possibly a response to the refusal in 2024 by the Regional Court of Essen (Germany) to issue an anti-enforcement injunction to prohibit the enforcement of the award. It also supports the steps taken by Spain before the courts of Luxembourg, the United Kingdom, and the United States to block enforcement proceedings.
The scope of this decision is the subject of heated debate. On the one hand, it illustrates the Commission’s determination to put an end to intra-EU investment arbitration in the energy sector. On the other, it raises sensitive questions over sovereignty: EU courts cannot prevent those of third countries from recognizing and enforcing the award. The extraterritoriality that the Commission intends to confer on EU law therefore remains highly controversial.
