Moreover, might be a sufficient guarantee for state aid,

Moreover, other fundamental EU principles can be
affected. The previously examined Opinions also include among the fundamental
characteristics of the EU the principles of conferral, supremacy and direct
effect. As Micula case illustrates, EU state aid law can also become a problem
between EU and investment law. Even though under EU law the benefits given to
the investors by the Romanian authorities amount to illegal state aid, the
ICSID tribunal constituted under the Sweden-Romania BIT decided against the
host State. Some of the safeguards included in the draft text might diminish
the possibility of another Micula type case . Article 2(1) of Section 2 of the draft
text acknowledges the right of the contracting parties to regulate through
measures necessary to achieve legitimate policy objectives. Moreover, possibly
as a result of the Micula case, according to Article 2(3) of Section 2, the
decision of a contracting party not to issue, renew or maintain a subsidy shall
not constitute a breach of the provisions on investment protection. While this
might be a sufficient guarantee for state aid, the ECJ may find find an
incompatibility with general principles of EU law concerning the EU’s
constitutional architecture, and also incompatibilities could occur with
substantive provisions of EU law, such as the ones on the internal market and
competition law. This could lead to a number of possible incompatibilities.

Moreover, other fundamental EU principles can be
affected. The previously examined Opinions also include among the fundamental
characteristics of the EU the principles of conferral, supremacy and direct
effect. As Micula case illustrates, EU state aid law can also become a problem
between EU and investment law. Even though under EU law the benefits given to
the investors by the Romanian authorities amount to illegal state aid, the
ICSID tribunal constituted under the Sweden-Romania BIT decided against the
host State. Some of the safeguards included in the draft text might diminish
the possibility of another Micula type case . Article 2(1) of Section 2 of the draft
text acknowledges the right of the contracting parties to regulate through
measures necessary to achieve legitimate policy objectives. Moreover, possibly
as a result of the Micula case, according to Article 2(3) of Section 2, the
decision of a contracting party not to issue, renew or maintain a subsidy shall
not constitute a breach of the provisions on investment protection. While this
might be a sufficient guarantee for state aid, the ECJ may find find an
incompatibility with general principles of EU law concerning the EU’s
constitutional architecture, and also incompatibilities could occur with
substantive provisions of EU law, such as the ones on the internal market and
competition law. This could lead to a number of possible incompatibilities.

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Moreover, other fundamental EU principles can be
affected. The previously examined Opinions also include among the fundamental
characteristics of the EU the principles of conferral, supremacy and direct
effect. As Micula case illustrates, EU state aid law can also become a problem
between EU and investment law. Even though under EU law the benefits given to
the investors by the Romanian authorities amount to illegal state aid, the
ICSID tribunal constituted under the Sweden-Romania BIT decided against the
host State. Some of the safeguards included in the draft text might diminish
the possibility of another Micula type case . Article 2(1) of Section 2 of the draft
text acknowledges the right of the contracting parties to regulate through
measures necessary to achieve legitimate policy objectives. Moreover, possibly
as a result of the Micula case, according to Article 2(3) of Section 2, the
decision of a contracting party not to issue, renew or maintain a subsidy shall
not constitute a breach of the provisions on investment protection. While this
might be a sufficient guarantee for state aid, the ECJ may find find an
incompatibility with general principles of EU law concerning the EU’s
constitutional architecture, and also incompatibilities could occur with
substantive provisions of EU law, such as the ones on the internal market and
competition law. This could lead to a number of possible incompatibilities.

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