Fraudulent Bankruptcy and Dissipation Conduct: The Supreme Court's Clarifications in Ruling No. 13299/2025

The Supreme Court returns to address the crime of fraudulent patrimonial bankruptcy, tackling one of the most delicate issues: when a management choice goes beyond the boundary of entrepreneurial gambling and becomes true and proper dissipation of company assets. Ruling No. 13299, filed on April 7, 2025 – which annuls with referral the decision of the Court of Appeal of Bari – offers an interpretative compass to both legal professionals and entrepreneurs called to navigate turbulent waters.

The Regulatory Context: Between Bankruptcy Law and the Criminal Code

Article 216, paragraph 1, letter a) of the Bankruptcy Law punishes the administrator who destroys, disperses, conceals, or dissipates the assets of the bankrupt company. The Court, recalling established precedents (Cass. nn. 7437/2021, 34979/2020, 38396/2017), reiterates that criminal protection does not only concern intentionally destructive acts, but any *distorted* use of company assets that prejudices creditors.

The Maxim and Its Practical Meaning

In matters of fraudulent patrimonial bankruptcy, the conduct of dissipation consists in the use of company assets in a distorted and highly eccentric manner with respect to their function as patrimonial guarantees, as a result of conscious choices that are radically incongruous not with the abstract corporate purpose, but with the actual needs of the company, taking into account its size and complexity, the concrete activity carried out, and the specific economic and entrepreneurial conditions existing.

In simpler terms, the Court establishes that it is not enough to prove that the act performed does not fall within the corporate purpose; it is necessary to verify whether that act was rational with respect to the *real situation of the company*. The analysis, therefore, becomes *contextual*: it considers the company's size, the market, the state of crisis, and the concrete purposes of the operations undertaken.

Criteria for Evaluating "Radical Incongruity"

The decision identifies three parameters that the trial judge must evaluate in the referral proceedings:

• Company Size and Complexity: A risky investment may be tolerable for a multinational group, but not for an already fragile SME.
• Concrete Activities Carried Out: The purchase of a prestigious property might be consistent for a real estate company, but not for a logistics operator in liquidity crisis.
• Economic and Financial Conditions: The Court requires an *ex ante* consideration of the real possibility of covering the outlay without prejudicing creditors.

With this framework, the Supreme Court shifts the focus from mere formal deviation – "it does not fall within the corporate purpose" – to a substantial evaluation of *economic congruity*.

Implications for Directors, Auditors, and Professionals

The ruling offers certainly interesting practical insights:

• Directors: They must document the economic reasons for their decisions, especially in times of financial strain.
• Auditors and Accountants: They are called upon to exercise more incisive control over the reasonableness of extraordinary operations.
• Trustees: They will be able to use the outlined criteria to identify acts of dissipation and bring liability actions.
• Defense Counsel: The defense strategy cannot be limited to invoking the corporate purpose but must provide proof of the *economic-functional* coherence of the choice.

Conclusions

With ruling No. 13299/2025, the Supreme Court takes a decisive step in clarifying the boundaries of dissipation in fraudulent bankruptcy. The guiding criterion becomes the *concrete analysis* of the company's needs, replacing purely formal approaches with substantive evaluations. For legal professionals, this entails an increase in the burden of justification in court; for directors, an invitation to documented and conscious management of strategic choices. Ultimately, the decision strengthens the protection of creditors and promotes a more responsible business culture.