State aid: Commission opens in-depth investigation into arbitration award in favour of Antin to be paid by Spain

(Credit: Unsplash)

This article is brought to you in association with the European Commission.

The European Commission has opened an in-depth investigation in order to assess whether an arbitration award, to be paid by Spain in favour of Antin as compensation for the foregone support following the modification of a renewable electricity support measure, is in line with EU rules on State aid.

The arbitration award in favour of Antin

In 2007, Spain established a scheme to support the production of electricity from renewable sources. This scheme was not notified to the Commission for approval under State aid rules.

In 2013, Spain modified the terms under which renewable installations could receive support. The modifications apply also to installations that had started to receive the support under the 2007 scheme. On 10 November 2017, the Commission adopted a decision (SA.40348) that found the 2013 support scheme for renewable electricity to be in line with EU State aid rules.

Antin Infrastructure Services Luxembourg S.à.r.l. and Antin Energia Termosolar B.V. (”Antin”), constituted in Luxembourg and the Netherlands, respectively, had invested in renewables installations in Spain, which benefitted from the 2007 support scheme. Following the modifications introduced by Spain with the 2013 scheme, Antin initiated an arbitration procedure in order to be compensated for the foregone support it would have received on the basis of the 2007 scheme.

An arbitral award of 2018 (Antin vs Spain) found that Spain had infringed the Energy Charter Treaty (“ECT”) when it modified the 2007 renewables support scheme and introduced a new support scheme in 2013 with lower amounts of support. The arbitral tribunal ordered Spain to compensate Antin for losses suffered as a consequence of the modifications of the 2007 scheme. The compensation amounts to €101 million, plus interests on this sum and a contribution to the costs of the arbitration proceedings.

The Commission’s investigation

At this stage, the Commission’s preliminary view is that the arbitration award would constitute State aid, as it grants Antin an advantage equivalent to those provided for by the non-notified 2007 Spanish scheme.

In particular, the Commission’s doubts concern:

  • The compliance of the arbitration award with the principles of mutual trust and autonomy of EU Law. The basis of the award are the investor-to-State provisions of the ECT. In its judgment on the Achmea case (C-284/16), the Court of Justice of the European Union ruled that investor-to-State arbitration, when applied in an intra-EU context, undermines the system of legal remedies foreseen in the EU Treaties for resolving such disputes. It therefore poses a threat to the autonomy of EU law and the principle of mutual trust between the Member States.
  • Whether the arbitration award could lead to discrimination among investors based on nationality and on their ability to access international arbitration, since Spanish investors are precluded from bringing an action before an arbitration tribunal for the modifications to the 2007 scheme.
  • The compliance of the arbitration award with the Commission’s 2008 Guidelines on State aid for environmental protection and the 2014 Guidelines on State Aid for Environmental Protection and Energy. The renewables installations in which Antin had invested already benefit from the 2013 support scheme, which has been approved by the Commission under State aid rules. The Commission will investigate whether the additional support granted by the arbitration award is necessary for the development of an economic activity, has an incentive effect and is proportionate. The Commission will also investigate whether granting such support only to Antin could unduly distort competition.

The Commission will now carry out an in-depth investigation to determine  whether its initial concerns are confirmed. The opening of an in-depth investigation provides all interested parties with an opportunity to comment on the measure. It does not prejudge in any way the outcome of the investigation.


On 19 July 2018, the Commission issued a Communication on the protection of investments. The Communication explains that the Achmea judgment is relevant in that the investor-State arbitration clause in the ECT does not apply intra-EU, that is, between investors from a Member State and another Member State of the EU. As the Communication also clarifies, the ECT has only created rights and obligations between the EU and third countries and has not affected the relations between the EU Member States.

The non-confidential version of the decision will be made available under the case number SA.54155 in the State aid register on the Commission’s competition website once any confidentiality issues have been resolved. New publications of State aid decisions on the internet and in the Official Journal are listed in the Competition Weekly e-News.

the sting Milestones

Featured Stings

Can we feed everyone without unleashing disaster? Read on

These campaigners want to give a quarter of the UK back to nature

How to build a more resilient and inclusive global system

Stopping antimicrobial resistance would cost just USD 2 per person a year

The EU Parliament slams Commission on economic governance

Antitrust: Commission sends Statement of Objections to O2 CZ, CETIN and T-Mobile CZ for their network sharing agreement

Take Care of In Order to Be Taken Care of

3 reasons why embracing the circular economy can be powerful for middle income countries

6 innovative technologies about to transform our infrastructure

Why growth is now a one way road for Eurozone

Female leaders warn about the erosion of women’s rights

Statement by Frans Timmermans, Executive Vice-President for the European Green Deal, on the announcement to postpone the COP26

Halt death sentences on children, UN rights expert urge Saudi authorities

This is how Britain saved some of its most precious wildlife from the threat of extinction

How to put people at the heart of your company’s COVID-19 response

‘Whole spectrum of Afghan society’ must get behind peace talks, UN envoy tells Security Council

EU regions get additional 47.5 billion EUR to tackle local effects of COVID-19

These artists created a huge open library – and their idea’s gone global

Commission refers Denmark to the Court for failing to fulfil its obligations in relation to the name “Feta”

Mine action is at ‘the nexus’ of peace, security and development: UN official

WEF Davos 2016 LIVE: The health of capitalism won’t be the only worry for those who head for Davos

China’s stock markets show recovery signs while EU is closely watching in anticipation of the €10bn investment

Does the Commission subsidise a forced labour scheme in Britain?

One for all? Are physicians prepared to deliver care to the LGBTQIA+ community?

UN chief lauds Fijians as ‘natural global leaders’ on climate, environment, hails ‘symbiotic relationship’ with land and sea

How start-ups will lead India through the Fourth Industrial Revolution

This one small change could transform education for millions

Why rich countries are seeing more poverty

World Wildlife Day: UN chief urges ‘more caring’ relationship with nature

EU approves close to €240 million to strengthen resilience in neighbouring countries hosting Syrian refugees in light of the coronavirus pandemic

Third Facebook-Cambridge Analytica hearing: data breach prevention and cures

De-escalate now, to steer Yemen off ‘precarious path’, UN Security Council hears

Brexit: Six more months of political paralysis or a May-Corbyn compromise?

Golden Pen of Freedom Awarded to Murdered Saudi Journalist Jamal Khashoggi during World News Media Congress 2019

Questions and Answers on the EU Digital Covid Certificate

The fires in the Brazilian amazon rainforest may be related to the increase in the number of hospitalizations for respiratory complications in the state of PARÁ

Why does the whole world want Britain to stay in the EU?

EU citizens disenchanted with Economic and Monetary Union over rising poverty and high unemployment

Your next pair of sneakers could be made from coffee

Mental health in times of a pandemic: what can each individual do to lessen the burden?

Migration crisis: how big a security threat it is?

Reducing deforestation means getting serious about environmental crime

Security Council should ‘nurture’ Colombian consensus against return to violence, top UN official urges

This is the most sustainable way to use fashion – and it’s not renting clothes

Collaboration: the key to success in the digital economy

Lessons in disaster relief from the world’s most cyclone-battered state

Happy workers are more productive, research shows

Women to save Europe’s own labour resources

Food system failures in our age of abundance

Tuesday’s Daily Brief: Libya civil war, African displacement, global trade tensions, terrorists’ children ‘secretly detained’, and more

Trade, taxes and other takeaways from Li Keqiang’s speech to the World Economic Forum

The European Sting @ European Business Summit 2014 – the preview

UNICEF urges ‘transformative shift’ in family-friendly work policies to reap ‘huge’ benefits

Ecofin: ‘The Friday battle’ for the banking union

Boosting the EU’s green recovery: Commission invests €1 billion in innovative clean technology projects

Guarantee of mental health’s stability in times of pandemic

Mobile technology: health in your hands

Digital Finance Package: Commission sets out new, ambitious approach to encourage responsible innovation to benefit consumers and businesses

Parliament demands ban on neo-fascist and neo-Nazi groups in the EU

The new era of Matriarchy?

The role companies play in boosting growth in emerging markets

A Sting Exclusive: “Our ambition is by 2020 Indonesia to become an emerging power of World’s Maritime Access”, reveals the Chargé d’Affaires at the Embassy of Indonesia in Brussels, treating WEF, ASEAN and EU-Indonesia relations on the eve of the World Economic Forum East Asia 2015 in Jakarta

Want a sustainable business? Hire in talent

Sustainable development demands a broader vision, says new OECD Development Centre report

More Stings?

Speak your Mind Here

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s