On January 25, 2021, the Tribunal has rendered its award.
“CONCLUSIONS
….the Tribunal finds, by majority:
(a) that the European state aid regime and the ECT apply concurrently to the investment and form part of the applicable law;
(b) that the Claimants did not have a legitimate expectation that the Special Regime subsidies, notably in terms of RD 661/2007, would continue to be paid for the lifetime of its Plants;
(c) that in the circumstances, the clawing back by Spain, in and after 2013, of subsidies earlier paid at levels in excess of the amounts that would have been payable under the Disputed Measures, had they been in force in previous years, was in breach of the obligation of stability under Article 10.1, first and second sentences, of the ECT;
(d) that there was no other breach of the ECT;
(e) that all other claims must be rejected.
The Parties shall seek to reach agreement on the impact of the unlawful retroactive application of the Disputed Measures, on the basis that those measures were otherwise consistent with the ECT.
If the Parties do not, within 3 months of the date of this Decision, reach agreement on the amount payable in this respect, either of them may request the Tribunal to decide the outstanding issues in dispute, in accordance with a prompt briefing schedule. If the Parties do reach agreement on the amount due, they should report this to the Tribunal in order to enable it to issue an Award incorporating this Decision and dealing with any residual issues identified, including costs, thereby terminating the proceedings. The Tribunal will deal with costs issues in that Award.
Mr. Grigera Naón disagrees with these conclusions, insofar as they hold Spain not responsible for full compensation for the New Regime. In his view, Spain breached Article 10.1, first and second sentence, of the ECT, in 2013 by imposing that regime upon the Claimants’ Wind Farms, which were already well established and had legitimate expectations as to the maintenance of the Special Regime.
A statement of the reasons for this dissent is attached to the award.”
The full award is published under
http://icsidfiles.worldbank.org/icsid/ICSIDBLOBS/OnlineAwards/C4445/DS15835_Sp.pdf (Spanish)
http://icsidfiles.worldbank.org/icsid/ICSIDBLOBS/OnlineAwards/C4445/DS15835_En.pdf (English)
