Fraudulent Bankruptcy and Intra-Group Transfers: The Court of Cassation Clarifies with Ruling No. 27497 of 2025
The Court of Cassation, with ruling no. 27497 of July 25, 2025, has provided important clarifications regarding fraudulent patrimonial bankruptcy. The decision focuses on resource transfers between companies belonging to the same group, a crucial issue for the management of distressed businesses and the liability of directors. This ruling underscores the importance of transparent and diligent conduct, reaffirming the boundaries of legality in a constantly evolving sector.
Asset Misappropriation in Corporate Groups
The case examined by the Supreme Court, which rejected the appeal against a decision by the Court of Appeal of Turin dated October 23, 2024, concerned the configurability of fraudulent patrimonial bankruptcy (Art. 216 of the Bankruptcy Law, now the Crisis Code) in contexts of intra-group transfers. Ruling 27497/2025 clarifies that belonging to a group does not exclude misappropriation. A transfer of resources from a company in severe financial distress to another within the same group, also in crisis, without any economic consideration, can constitute the offense. The Court emphasizes the lack of real benefit for the company divesting its assets, recalling the duty of directors to act in the interest of the individual entity.
Analysis of the Maxim: The Boundary of the Offense
In matters of fraudulent patrimonial bankruptcy, the transfer of resources between companies belonging to the same group, carried out without any economic consideration from a company in severe financial distress to another company in economic difficulty, constitutes misappropriation, as in such cases, no favorable prognosis for the operation can be allowed.
This maxim is at the heart of the decision. The Court of Cassation establishes that misappropriation is not merely physical removal but also an operation that, even if regular, deprives the company of resources without adequate compensation, exacerbating its insolvency. If a company in deep crisis transfers assets to another within the group, also in difficulty, without consideration, it constitutes an unjustified depletion that harms creditors. The concept of "no favorable prognosis" is decisive: in a context of widespread crisis within the group, it is not permissible to expect that the transfer will generate future benefits for the company that has divested itself of resources. The operation is intrinsically harmful and, therefore, misappropriating. The ruling recalls the principles of sound business management and the duty of directors to preserve corporate assets (Art. 2634, paragraph 3 of the Civil Code). The intent for bankruptcy is general: awareness that the act may cause harm to creditors is sufficient.
Practical Advice for Directors
The ruling by the Court of Cassation requires greater caution from directors of corporate groups, especially during periods of crisis. To prevent the risk of misappropriation, it is essential to:
- Assess the Consideration: Every transfer must have a real, adequate, and verifiable economic consideration.
- Monitor Financial Conditions: Control the economic health of all entities within the group; operations between distressed companies require utmost diligence.
- Document in Detail: Every intra-group operation must be meticulously documented, highlighting economic reasons and expected benefits.
These measures are crucial to prevent business decisions from exposing directors to serious criminal liability, as provided for by Art. 223, paragraph 1 of the Bankruptcy Law (now Art. 329 of the Crisis Code).
Conclusions
Ruling no. 27497 of 2025 reiterates that group logic cannot justify the unjustified depletion of a single company's assets in crisis. Transparency, diligence, and the pursuit of real economic consideration are the pillars of correct management. Qualified legal assistance is indispensable for navigating bankruptcy and corporate law, ensuring the compliance of operations and protection from potential liabilities.
