Recovery of unlawful State aid from asset purchasers is a crucial aspect of restructuring undertakings, as it carries a substantial risk associated with the potential amount to be recovered. In this context, it is acknowledged that, in cases of economic continuity, unlawful State aid can be recovered from the purchasers of assets. This principle is well-established, notably in the case law of the judicature of the European Union and the Commission Notice on the recovery of unlawful and incompatible State aid. However, it is important to note that the criteria used for determining economic continuity do not provide consistent and legally secure standards. This lack of clarity in the criteria poses challenges for ensuring legal certainty in practical applications. The focus is the question of when economic continuity is established between the aid recipient and the purchaser, thereby enabling recovery of unlawful State aid from the purchaser.
Keywords: asset deal; purchaser; recovery; economic continuity