The Claw-Back Clause in State Aid Decisions

This analysis addresses the topic of claw-back clauses in EU state aid decisions amidst ever growing state aid expenditures, reaching a peak of 329.2 billion in 2021. It begins by briefly examining the status quo of state aid in the EU and the legal basis for state aid decisions. After a general introduction into claw-back clauses as part of the notification proceedings and their general objectives, to limit state aid to the necessary minimum and ensure proportionality, the specific approach of the European Commission on state aid measures based on Article 107 (3) TFEU is discussed. Different designs and approaches of a claw-back clause are then illustrate via the following state aid decisions: Important Projects of Common European Interest (IPCEI) in Microelectronics (ME) and Communication Technologies (CT), STMicroelectronics (ST) – New Silicon Carbide Substrates Plant in Catania, ST and GlobalFoundries (GF) – Semiconductor Manufacturing Facility as well as Brunsbüttel LNG Onshore Terminal. The conclusion then highlights the differences and similarities among the analysed claw-back clauses. After a short comparison to claw-back mechanisms in state aid decision in the United States (US), an outlook and suggestions for improvements of claw-back clauses in state aid decisions going forward is presented.