The Next Battle Over Intra-EU Awards: State Aid and the Bulgarian Case

On 21 January 2026, the European Commission (“EC”) launched an in-depth investigation into the EUR 61 million ICSID award (plus interest) issued in favour of the Maltese investor ACF Renewable Energy Limited (“ACF Award”). The award was issued by an Energy Charter Treaty (“ECT”) tribunal which held that Bulgaria had breached the treaty by altering its 2011 renewable energy support scheme through measures adopted between 2013 and 2015. The EC must now determine whether payment of the ACF Award is compatible with EU State aid rules. The opening of an in-depth investigation by the EC does not, by itself, establish incompatibility. But the recent Antin example (discussed below) suggests the EC may well reach that conclusion here too, and bar payment of the ACF Award under EU law.

This post considers what these developments may mean for the future enforcement of intra-EU awards — i.e., those issued following arbitration proceedings between EU investors and EU Member States. It begins by setting out the background to the EC investigation and a recap of the intra-EU award enforcement landscape. It then addresses what this new frontier opened by State aid law as part of the EC’s broader strategy against intra-EU arbitration means for the future of intra-EU arbitration and award enforcement.

Background

The ACF Award arose out of Bulgaria’s 2011 renewable support scheme, on which ACF relied when investing in a solar photovoltaic plant in 2012. Between 2013 and 2015, Bulgaria altered the scheme to the detriment of solar investors, prompting ACF’s ICSID claim. ACF ultimately secured more than EUR 61 million in damages for Bulgaria’s breach of its obligations under the ECT. Although Bulgaria had already notified the scheme, as then in force, to the EC in March 2016 and obtained State aid approval in August 2016, it later notified the ACF Award separately as a potential aid measure. The EC investigation initiated in January 2026, therefore, is a consequence of that later notification.

Because the underlying dispute is intra-EU, the EC will reportedly examine, alongside the economic assessment of compatibility with the internal market, whether the ACF Award and any payment of it infringe Article 19(1) Treaty on the European Union, and Articles 267 and 344 of the Treaty on the Functioning of the European Union (“TFEU”), and the autonomy of the EU legal order—i.e., the Court of Justice of the European Union (“CJEU”)’s “ultimate jurisdiction.” This means, a conclusion on breach of EU-law provisions with respect to CJEU’s jurisdiction forecloses any finding of compatibility with EU law under State aid rules.

As readers will recall, the question on CJEU’s jurisdiction was effectively settled by Achmea, reaffirmed by Komstroy (as discussed in previous posts such as here and here). In Achmea, the Court held that arbitration clauses in intra-EU bilateral investment treaties (“BIT”) are incompatible with Articles 267 and 344 TFEU because they permit tribunals to interpret and apply EU law outside the Union’s judicial framework. In Komstroy, the Court extended that reasoning to the ECT and other multilateral treaties, concluding that arbitration between an EU investor and an EU Member State is likewise incompatible with EU law.

After Achmea, Member States moved quickly to lock in the Court’s position. In early 2019, several issued declarations stating that “all investor-State arbitration clauses contained in [intra-EU BITs] are contrary to Union law and thus inapplicable”. In 2020, 23 Member States signed an agreement terminating around 130 intra-EU BITs, including their sunset clauses. Then came the 2024 declaration, in which 26 Member States endorsed Komstroy regarding the non-applicability of the arbitration clause in the ECT intra-EU. That position was later embedded in an inter se agreement concerning the ECT’s arbitration provision, approved recently by the European Parliament on 10 September 2025. Finally, on 28 June 2024, the EC announced that the EU and Euratom have formally withdrawn from the ECT.

Alongside these efforts, the EC has continued to lend practical force to these declarations and agreements: At the end of 2025, it launched infringement proceedings against Hungary, over state-controlled entities pursuing enforcement of intra-EU awards outside the EU, and against Belgium, over its courts’ recognition of intra-EU awards.

Recap of Intra-EU Award Enforcement Landscape 

This strong EU-level opposition, however, has not prevented intra-EU award creditors from securing important wins before non-EU courts, including in the United Kingdom, the United States, Australia, Singapore, and Switzerland, amongst others. In those jurisdictions, courts have declined to give Achmea and Komstroy extraterritorial effect and have instead treated intra-EU awards as enforceable as a matter of the forum States’ international law commitments.

Since Achmea, therefore, it has become clear that intra-EU awards even outside the ICSID framework could be enforceable before non-EU courts if the seat of arbitration is outside the EU.

New Frontier in the Enforcement Race – State Aid Rules

Although investors have so far blunted the effect of Achmea, Komstroy (and their progenies) by seeking enforcement of intra-EU awards outside the EU, State aid law has opened a more consequential front. It first surfaced in Micula v Romania, where the EC treated Romania’s payment of the intra-EU award as State aid — a position later upheld by the CJEU (and now under appeal). The EC then built on that in its Antin decision issued last year, ordering Spain to take “all appropriate measures to prevent Antin (...) from seeking recognition, enforcement and execution of the award” (Antin decision, paras. 284-285). The Antin award, like the ACF Award, had granted compensation to the claimants in 2018 after Spain retroactively withdrew renewable subsidies in breach of its ECT obligations. Following Spain’s notification of the Antin award to the EC in 2019, the EC had launched its State aid investigation in 2021 (on the same basis as the investigation for the ACF Award) which concluded with the EC’s incompatibility and unlawful State aid finding.

Put differently, through State aid law, the EC has been taking its anti-intra-EU arbitration campaign a step further and the point is clear: Alongside Achmea-based jurisdictional objections to intra-EU arbitration, the EC is willing to use State aid law to block payment of intra-EU awards altogether, thereby extending the practical reach of the Achmea-rule beyond the EU and leaving Member States caught between complying with non-EU enforcement orders and breaching EU State aid rules.

Future of Intra-EU Arbitration and Award Enforcement

Just yet, intra-EU award creditors are not out of all options within the EU, and ACF may have the same avenues if the EC ultimately classifies payment of the ACF Award as unlawful State aid. They could challenge the EC’s decision before the CJEU, as the Antin claimants are now doing. The Antin claimants are seeking the annulment of the Antin Decision in full or, alternatively, of the provisions directing national courts to issue anti-suit and anti-enforcement injunctions. They also appear to challenge the decision on the basis that it infringes their right to property under the European Convention on Human Rights (“ECHR”).

That last argument may indeed have a further destination. As discussed by the author elsewhere, there are viable grounds to argue that non-enforcement of a final ICSID award by the courts of an EU Member State may violate Article 1 of Protocol 1 to the ECHR (the right to property). If neither the CJEU nor national courts provide relief, award creditors may seek to bring the matter before the European Court of Human Rights as a breach of right to property (“ECtHR”) (see here for a fuller analysis of how the ECtHR may approach the issue).

That said, as the multiple enforcement efforts before non-EU courts in the past few years have proven, intra-EU creditors may be better served looking beyond the EU and seeking monetisation against Member State assets located outside the EU. In that setting, for example, attachment orders issued by non-EU courts are likely to deprive EU State aid restrictions of their practical effect, abecause the relevant enforcement measure is compelled by an external process rather than voluntarily agreed by the Member State itself to fall foul of its EU law obligations.

More broadly, these developments will continue to drive contractual protections, restructuring and extra-EU investment routing efforts by European investors who had historically relied heavily on ECT protections and/or treaty arbitration when investing within the EU.