Fraudulent bankruptcy: analysis of judgment Cass. pen. no. 36040/2024

The very recent judgment of the Court of Cassation, Fifth Section, dated September 26, 2024, no. 36040, represents an important moment of reflection on the topic of fraudulent bankruptcy and the responsibilities of directors in complex business contexts. In the case under examination, the appellants A.A. and B.B. were found guilty of fraudulent bankruptcy in relation to the bankruptcies of the companies PAZZA IDEA Srl and MINI PA Srl, raising fundamental questions regarding resource management and intragroup operations.

Reasons for the judgment

The Court confirmed the decisions of the lower courts, highlighting how the conduct attributed to the appellants, particularly to B.B., constituted a clear intent to misappropriate. Among the contested operations was the transfer of considerable sums to other entities within the group, in the absence of adequate compensatory advantage for the debtor company. This aspect is crucial, as jurisprudence establishes that, to exclude the misappropriative nature of an operation, it is necessary to demonstrate that the transfer of resources resulted in a positive final balance for the group.

The Court stated that it is not enough to consider only the management deficit, but it is essential to ascertain that the passive excess derives from misappropriations known to creditors.

Directors' liability: a central theme

In the specific case, the Court emphasized B.B.'s central role in the management of the PAZZA IDEA group, highlighting that his decisions had led to imprudent and manifestly reckless choices, damaging creditors. The defense attempted to justify the operations as necessary for the rescue of the group, but the Court reiterated that such justifications are not sufficient to exclude the intent provided for by articles 216 and 223 of the bankruptcy law.

Conclusions and practical implications

Judgment no. 36040/2024 serves as a warning to company directors, highlighting how the management of intragroup operations must be conducted with the utmost care and transparency. Jurisprudence continues to outline a rigorous framework regarding directors' liability, emphasizing the importance of protecting creditors and ensuring the company's asset integrity. It is essential that business decisions are always oriented towards safeguarding the interests of all stakeholders involved.