The protracted legal saga of Micula and Others v. Romania—a landmark case in the annals of investor-state arbitration—has emerged as a litmus test for the global investment landscape. At its heart lies the tension between international investment agreements and the European Union’s regulatory framework, raising profound questions about the future of investor protections.
The dispute originates in 1998, when the Micula brothers, Romanian nationals based in Sweden, invested in Romania under the Sweden-Romania Bilateral Investment Treaty (BIT). The treaty offered economic incentives aimed at spurring development in underprivileged regions. However, Romania terminated these incentives in 2004 to align with EU state aid rules, a move that effectively breached the BIT and inflicted substantial financial losses on the brothers. The resulting arbitration under the World Bank’s ICSID Convention culminated in a sizeable compensation award against Romania, which was eventually settled.
Yet, the broader implications of the case extend well beyond Romania. The European Union has consistently resisted investor-state dispute settlement (ISDS) mechanisms, asserting that such disputes should fall exclusively under the purview of European courts. This has set the stage for a complex and contentious interplay between EU law and international arbitration frameworks.
The EU’s Relentless Opposition
In 2014, the European Commission (EC) ruled that compensating the Micula brothers contravened EU state aid rules. This position has since been a cornerstone of the EU’s strategy to curb the influence of BITs within its jurisdiction. Despite this, the UK Supreme Court in 2020 upheld the validity of the ICSID award, reinforcing the Micula brothers’ right to compensation.
Tensions escalated further in 2024, when the EC initiated legal action against the United Kingdom, citing a breach of Article 89 of the Brexit Withdrawal Agreement. This clause obliges the UK to comply with EU state aid principles, even post-Brexit. The political climate in Britain—already fraught with hostility towards the European Court of Justice (ECJ)—adds an extra layer of uncertainty to this brewing legal confrontation.
A Radical Turn by the EU General Court
On 2nd October 2024, the EU General Court issued a ruling that dramatically altered the trajectory of the case. It ordered the Micula brothers to repay the €400 million compensation and held them personally liable for the recovery. The decision represents a marked departure from established norms in both EU and Romanian corporate law.
The EC’s position effectively retrofits the ICSID Tribunal’s damages award into the EU’s state aid regime. Five non-claimant companies affiliated with the Micula brothers—none of which benefited directly from the compensation—have also been deemed liable. More strikingly, the EC ‘pierced the corporate veil’, holding the brothers personally responsible for repayment. This paves the way for Romania to target their private assets, from property holdings to pension funds.
Erosion of Corporate Protections
This unprecedented interpretation challenges the principles of limited liability under Romanian corporate law, codified in Law No. 31/1990. These principles, foundational to the EU’s corporate framework, shield shareholders from personal liability for corporate obligations and ensure the separation of corporate and personal assets. The EC’s approach not only bypasses these safeguards but also introduces legal unpredictability that could have far-reaching repercussions for businesses operating within the EU.
Personal liability for corporate enforcements is permissible only in exceptional, well-defined or fraudulent circumstances. By adopting this extraordinary measure without clear justification, the EC risks destabilizing investor confidence, potentially driving capital away from the bloc and undermining its reputation as a stable investment destination.
Investor Protections Under Siege
At its core, the Micula case underscores the fragility of investor protections in a shifting regulatory landscape. The EC’s aggressive stance undermines the legal assurances that international arbitration mechanisms such as ICSID were designed to uphold. By pursuing the recovery of compensation granted under a legally binding award, the EC sends a disquieting message to investors: that their rights under international agreements may be subordinated to evolving political imperatives.
The Micula brothers have mounted an appeal, with a decisive hearing scheduled to start on 12th December 2024 and a judgment expected in 2025. While the outcome remains uncertain, the case has already cast a long shadow over the future of investor-state arbitration, highlighting the growing challenges investors face in navigating the interplay between international law and regional governance.
A Watershed Moment for Global Investment
The ramifications of this case extend far beyond the individuals involved. As the EU seeks to reshape its approach to ISDS, the Micula ruling may serve as a cautionary tale for states and investors alike. For those operating within or alongside the EU, it underscores the need for vigilance in an era where the boundaries between national and supranational legal regimes are increasingly blurred.
