This case is an enforcement action against the UK, and its subject matter is the Supreme Court judgment Micula and others v Romania ( UKSC 5). The judgment was handed down during the implementation period when EU law was applicable under Article 127(1) of the Withdrawal Agreement,
In its 2020 judgment, the Supreme Court authorised the enforcement of a 2013 arbitral award against Romania for a violation of the Sweden-Romania Bilateral Investment Treaty (BIT). In its action before the Court of Justice, the Commission argues that the UK Supreme Court violated a number of EU law obligations: even though it is a court of last resort, it failed to refer to the Court of Justice under Article 267 TFEU; it misinterpreted Article 351 TFEU which is about international agreements concluded by Member States prior to their EU accession; it violated the duty of cooperation under Article 4(3) TEU by deciding matters pending before the Court of Justice; and it violated Article 108(3) TFEU on state aids.
In his Opinion, delivered on 9 November 2023, Advocate General Emiliou suggested that the Court of Justice declare that the UK Supreme Court had violated, on the one hand, its duty to refer under Article 267 TFEU and, on the other hand, its duty of cooperation by refusing to stay the domestic proceedings until the Court of Justice adjudicated on the matter. In his Analysis, he referred to a chapter written by Professor Koutrakos entitled ‘‘International agreements concluded by Member States prior to their EU accession – Burgoa’ (included G. Butler and R. Wessel (eds) EU External Relations Law – The Cases in Context, Hart Publishing, Oxford, 2022, pp. 133-143).
Professor Koutrakos has written widely on the issues that arise in this case. On international agreements concluded by Member States and EU law, he has written, amongst others, the authoritative EU International Relations Law 2nd edition. On BITs and EU Law, he has written, amongst others, ‘The Autonomy of EU Law and International Investment Arbitration’, (2019) Nordic Journal of International Law, pp. 41–64.