How Far Do Achmea and Komstroy Reach? The Request for a Preliminary Ruling of the German OLG Hamm to the CJEU on Tort Liability and ICSID Enforcement Outside the EU

On March 27, 2026, the German Hamm Higher Regional Court (“OLG Hamm”) referred questions to the Court of Justice of the European Union (“CJEU”) that go beyond the familiar terrain of Achmea and Komstroy: whether an EU Member State court may block enforcement of a binding ICSID award in a third country such as the United States. The case arises from Spain's refusal to pay an EUR 28 million award owed to former RWE Group investors over its 2012 cuts to renewable energy subsidies. This post outlines the questions referred to the CJEU and argues that the OLG Hamm’s reasoning is not convincing on several grounds—from its conflict-of-laws analysis to its mischaracterization of what functions as an anti-suit injunction—and asks what a ruling favoring Spain would mean for the EU's credibility as a defender of the international rule of law.

The Rules-Based International Order on Shaky Ground in the EU?

On March 27, 2026, the OLG Hamm referred a series of questions to the CJEU concerning the availability of injunctive relief against the enforcement of an intra-EU ICSID award outside the European Union. The request for preliminary ruling stems from an ICSID dispute over Spain’s cancellation of renewable energy subsidies during the 2012 financial crisis. Legal predecessors of the defendants—companies of the RWE Group—initiated ICSID arbitration against Spain under the Energy Charter Treaty (“ECT”) in 2014 (Case No. ARB/14/34), and the Tribunal awarded them over EUR 28 million in December 2020; an ad-hoc committee dismissed Spain’s annulment motion in March 2024. Instead of complying, Spain notified the European Commission in 2021 that the payment of the sums due constituted potential state aid (SA.64062)—invoking the parallel Antin decision, although no state-aid determination has been made here to this day. Now, Spain demands that the defendants refrain from enforcement measures outside the EU, particularly in U.S. proceedings initiated in 2021. The Essen Regional Court dismissed the claim as an inadmissible anti-suit injunction, as discussed here; the OLG Hamm, on appeal, considers the EU-law issues unresolved enough to request a preliminary ruling from the ECJ (Case C-264/26).

At first glance, the case continues the conflict between EU law and investment arbitration since Achmea and Komstroy. On closer inspection, the OLG Hamm takes a decisive step further: at issue is no longer merely the validity of intra-EU arbitration agreements and the enforceability of awards within the EU, but whether a German civil court may bar private companies from enforcing a binding ICSID award in a third country. The consequence of this would be extra-territorial application of EU law and derogation from the “strict observance […] of international law” required under Article 3(5) of the Treaty on the European Union (“TEU”). This brings within reach a new, more radical manifestation of what has already been described as a European variant of the Calvo doctrine.

Spain as the World’s Largest Debtor in Arbitration Proceedings

Behind these facts lies Spain’s attempt to evade award enforcement by every conceivable legal means (see previous posts here, here, or here). Foreign investors have sued Spain in over 50 cases with similar facts under the ECT. The so-called “intra-EU objection” has succeeded in only three cases (here, here, and here), while more than 100 tribunals have rejected it. Still, Spain refuses to pay: at least EUR 1.6 billion is outstanding from at least 22 publicly reported proceedings. The U.S. Supreme Court recently declined to hear Spain’s appeal, thereby clearing the way for enforcement against Spanish assets. The key arguments against Spain’s position are summarized in an amicus curiae brief. In contrast, Spain claims that enforcing intra-EU investment awards in third countries would undermine the autonomy and effectiveness of EU law, since third-country courts are neither bound by EU law nor able to refer questions to the CJEU under Article 267 of the Treaty on the Functioning of the European Union (“TFEU”). Spain further argues that enforcement would constitute unlawful state aid and that the relevant provision in EU law, Article 108(3) of the TFEU, qualifies as a protective statute within the meaning of Section 823(2) of the German Civil Code (BGB), thereby entitling Spain to injunctive relief under German law (Section 1004 of the BGB).

The Questions Referred

The OLG Hamm referred two main questions: First, it asked whether EU law itself gives an EU Member State a legally-protected position requiring Member State courts to recognize a claim for an injunction against the enforcement of an investment arbitration award in a third country—a question grounded in the duty of loyal cooperation and the rule that Member States may not resolve EU-law disputes outside the Treaties’ judicial system—and, if so, whether that position can be enforced domestically through the general instruments of German civil law.

Second, it asked whether enforcing an award outside the EU amounts to putting potentially unlawful state aid into effect while the Commission is still examining it; whether the affected Member State itself—not just private competitors—is protected by EU state aid rules; and whether national courts can or must block such enforcement by injunction until the Commission’s final decision.

Non-Applicability of German Law?

The OLG Hamm assumes that German law applies, with Germany being the place of performance and no apparent closer connection elsewhere. Yet, Article 4(1) of the Rome II Regulation bases the applicable law not on the place of performance but on the place of damage (lex loci damni); U.S. law is therefore, arguably, primarily applicable. Moreover, Spain seeks injunctive relief, which is not expressly covered by Article 4—a point the order leaves unaddressed. The court sidesteps the Article 4(1) standard by invoking a manifestly closer connection to Germany under Article 4(3), since the defendant’s relevant management decisions were made there. Not assessing Article 4(1) while simultaneously invoking the paragraph 3 exception is contradictory. The court should first have justified the applicability of the Rome II Regulation—supported by its broad scope and the damage-preventing purpose of the claim—and only then examined Article 4(3). Here, the lower court’s view that Spanish law applies is persuasive: the lawsuit is rooted in the amendment to Spanish subsidy regulations that violated the Energy Charter Treaty ("ECT") and prompted the arbitration. If German law is not applicable in the first place, the proposed use of German tort law as an instrument to restrain enforcement already lacks its doctrinal foundation.

Covert Reopening of a Decided Dispute in Violation of International Law

Furthermore, Spain’s attempt to enjoin U.S. enforcement through German courts ultimately constitutes a covert reopening of concluded proceedings and thus a breach of international law. Under Article 53(1) of the ICSID Convention, an award is binding inter partes and may be challenged exclusively through the Convention’s remedies, namely annulment. Spain’s annulment proceedings failed, so the award is binding and enforceable under international law; the German proceedings therefore violate Article 53(1). Spain’s jurisdictional challenge based on Achmea/Komstroy was likewise rejected by the ad-hoc Committee; jurisdiction is determined exclusively by the tribunal or the ad hoc Committee (Article 41(1)), and as part of the award that determination precludes renewed challenge before German courts.

From Non-Recognition to Active Obstruction

In Romatsa, the CJEU clarified that intra-EU investment arbitration awards may not be enforced within the Union. The present case is novel: with enforcement before a U.S. court, the proceedings fall outside the scope of EU law. The OLG Hamm would offset the U.S. court’s freedom from EU law by enjoining the investor itself—supposedly distinct from an anti-suit injunction because the addressee differs. This is formalistic: only the addressee changes while the enforcement-blocking effect is identical. This is precisely the scenario the CJEU, continuing its rejection of anti-suit injunctions, has prohibited. In 2023, the CJEU made unequivocally clear that to “indirectly influence the continuation of proceedings brought before the courts of another Member State” is incompatible with fundamental principles of the Union’s legal order (para. 37). This must apply equally to a third country, especially since the universal enforceability of ICSID awards, guaranteed by the ICSID convention (Article 54(1)), is at stake—affecting the rights of all 158 contracting states. The referral contains not a single consideration on this point—disregarding that international-law liability rests with the Member States.

German Tort Law as an Extended Arm of the European Commission

Doctrinally, the OLG Hamm constructs an injunction claim by analogy from Section 1004(1) of the BGB, in conjunction with Sections 823(1), 823(2), and 826 of the BGB, which grant the holder of a protected right a claim to removal of and an injunction against unlawful interferences. While Section 823(1) of the BGB provides for compensation in case of a violation of certain absolute rights (e.g., life, freedom, health, property), Section 1004 of the BGB grants injunctive relief to prevent interferences with those rights. In addition, Section 823(2) of the BGB attaches liability to the violation of a protective statute, whereas Section 826 of the BGB covers intentionally inflicted damage. These provisions thus protect the individual legal rights of private parties—not the fiscal interest of a state in avoiding an obligation under international law. The court considers reinterpreting Article 108(3) TFEU, third sentence, as a protective provision within the meaning of Section 823(2) of the BGB in favor of the aid-granting Member State, even though the provision imposes an obligation on that State; what is protected are the private interests of competitors, as the German Federal Court (“BGH”) held in 2011. The purpose of state aid law is thus inverted: an instrument for protecting competition becomes one with which a Member State shields itself from its legally enforceable obligations—leaving the award of a private company devalued. Were the CJEU to affirm, German tort law would become an instrument of state aid control—no longer protecting private competitors but serving as a shield of immunity for EU Member States acting contrary to international law.

Conclusion: The (Lack of) Credibility of the European Rule of Law

If the CJEU were to follow the OLG Hamm, a Member State could block an internationally binding arbitral award unfavorable to it indefinitely by merely notifying the Commission. For the defendants, this would amount to a de facto denial of effective legal protection (Article 19(1) of the TEU, Article 47 of the Charter of Fundamental Rights). A positive decision would be disastrous: the Union—which has elevated strict observance of international law to a constitutional requirement in Article 3(5) of the TEU—would become a pioneer of a practice in which a debtor-State exploits the courts of another Member State to evade binding international obligations. Regimes such as ICSID are based on reciprocity; those who undermine them can hardly expect others to comply—a realization no one should question in the current geopolitical situation. It is much to be hoped that the CJEU recognizes this and rejects the far-fetched reasoning of the OLG Hamm.