Italian Supreme Court, Fifth Criminal Section, judgment no. 34569/2026.
Fraudulent bankruptcy caused by so-called intentional transactions cannot be established through automatic inferences, nor can a director’s liability follow solely from their position in the company. The nature of the alleged transactions, their actual contribution to financial collapse and the defendant’s concrete involvement must first be established.
In judgment no. 34569/2026, the Fifth Criminal Section of the Supreme Court revisits the requirements of the offence under Article 223(2)(2) of the Italian Bankruptcy Law, quashing with remittal the conviction of the deputy chair of the board of a bankrupt company.
The charges concerned two separate courses of conduct: the transfer of a business division and the systematic failure to pay taxes and social security contributions.
The Court first reiterates the distinction between fraudulent bankruptcy involving assets and bankruptcy caused by intentional transactions. The former concerns diversion or dissipation of company resources; the latter requires proof that the intentional transactions caused or contributed to financial collapse.
Particular attention is given to unpaid taxes and social security contributions. Systematic non-payment may certainly have criminal significance, but is not sufficient in itself to establish bankruptcy caused by intentional transactions. It must be shown to result from specific management choices, to have caused an unjustified depletion of assets and to be causally connected to financial collapse.
As regards the mental element, the Supreme Court explains that intent must cover the transactions carried out, not necessarily the bankruptcy itself. Bankruptcy must nevertheless be a concretely foreseeable consequence of the conduct, in light of the company’s actual economic and financial position.
The judgment also addresses directors’ individual liability. Merely referring to a position on the management body is insufficient: the court must explain whether the defendant carried out the conduct, intentionally contributed to it through encouragement or assistance, or is liable for an omission under Article 40(2) of the Italian Criminal Code.
For these reasons, the Court quashed the challenged judgment and remitted the case to the Court of Appeal for a new hearing.
The ruling confirms the importance, in bankruptcy proceedings, of an individual assessment of liability based on concrete examination of the conduct, its causal connection with financial collapse and the contribution actually attributable to each director.
Source: Italian Supreme Court, Fifth Criminal Section, judgment no. 34569/2026, decided on 11 September 2026 and filed on 25 September 2026.
