Preferential Bankruptcy: The Court of Cassation and the "Ex Ante" Assessment of Insolvency (Judgment No. 24728/2025)

Managing a company in crisis is an arduous task, and every decision can have significant legal implications. The Supreme Court of Cassation, with Judgment No. 24728 of 2025, has provided a fundamental clarification regarding preferential fraudulent bankruptcy. This ruling is essential for understanding when a payment made by a company in difficulty can constitute a crime, compromising the principle of "par condicio creditorum," meaning equal treatment among creditors. Let's analyze the principles established by the Court in the case involving the defendant M. A.

The Offense of Preferential Bankruptcy: Protection of "Par Condicio Creditorum"

Preferential bankruptcy, governed by Article 216, paragraph 3, of the Bankruptcy Law (now integrated into the Code of Crisis and Insolvency), occurs when an insolvent entrepreneur makes payments to certain creditors to the detriment of others. This act violates the "par condicio creditorum," a cornerstone principle that mandates equal treatment among all creditors, except for legitimate grounds for preference. The objective is to prevent the entrepreneur from arbitrarily favoring specific parties, thereby altering the fair distribution of assets. The judgment, presided over by R. P. and with F. C. as rapporteur, clarifies the conditions for its applicability.

In matters of bankruptcy offenses, for the objective element of the crime of preferential fraudulent bankruptcy to be established, it is necessary to verify, through an "ex ante" assessment, the existence of insolvency indicators, either present or imminent, at the time of the contested payment, such as to render that payment capable of endangering the "par condicio creditorum."

This maxim from the Court of Cassation is decisive. It is not enough for a payment to have been "preferential"; it is essential to demonstrate that, at the time of that payment, the company was already in a state of insolvency – or was about to enter one – and that this condition was discernible from objective "indicators." The expression "ex ante" is the core: the judgment on insolvency must be based on the company's situation at the time of the payment, not retrospectively. Only if concrete signs of crisis existed at that moment, and the payment compromised the equal treatment of other creditors, can the offense be established.

The "Ex Ante" Assessment: Insolvency Indicators

The principle of "ex ante" assessment requires a prospective analysis of the company's financial health, based on concrete elements that indicated an irreversible or imminent crisis. The judgment emphasizes the need to identify "insolvency indicators," including:

• Systematic payment delays.
• Protests or enforcement actions.
• Growing debt exposure.
• Continuing operating losses.
• Difficulties in accessing credit.

These signs, if present, can indicate that the company was in a condition that rendered the contested payment unlawful. The Court of Appeal of Ancona, to which the case has been remanded, will now have to apply these criteria.

Conclusions

Judgment No. 24728 of 2025 by the Court of Cassation, Section 5, strengthens the protection of the "par condicio creditorum," providing clearer guidance for evaluating the conduct of an entrepreneur in crisis. The emphasis on "ex ante" assessment and objective insolvency indicators makes the regulatory framework more defined, benefiting both creditors and entrepreneurs. This ruling, based on Articles 216, paragraph 3, and 223 of the Bankruptcy Law, underscores the importance of qualified legal advice to navigate the complexities of corporate criminal law and prevent risks.