Intra-EU investment protection saga: Dr. Christian W. Konrad examines the European Commission’s Antin decision and its implications for intra-EU investment arbitration.
Dr Christian W. Konrad continues his series of publications on recent developments in investment protection in the European Union. In his latest article published in ecolex, he analyses the European Commission’s March 2025 decision in Antin and its implications for the enforcement of intra-EU investment arbitration awards.
The Antin decision concerns an intra-EU arbitral award rendered under the Energy Charter Treaty in favour of an investor based in Luxembourg against Spain. The European Commission considers the award, or at least its implementation, to constitute State aid that may not be granted. It further requires Spain to recover any payments made and to take all appropriate measures to prevent enforcement in third countries.
In his article, Dr. Konrad critically examines the legal basis of this approach. In particular, he considers whether an arbitral award or its enforcement can be attributed to a Member State for State aid purposes and whether the payment of compensation awarded for a breach of international investment protection standards can properly be regarded as an economic advantage.
The article also places Antin in the broader context of the CJEU’s decisions in Achmea and Komstroy, the earlier Micula proceedings and recent enforcement practice outside the EU. It discusses decisions by courts in Australia and Singapore that have continued to recognise the enforceability of intra-EU investment awards despite the position adopted by the European Commission and the CJEU.
Dr. Konrad concludes that the Commission’s approach does not resolve the fundamental conflict between EU law and international law, nor does it close the resulting gap in legal protection for foreign investors.
You may read the article online or in the print copy of ecolex issue no. 06/2026.