Embezzlement by the Liquidator: The Court of Cassation (Judgment no. 30604/2025) Excludes the Liability of the Supervisory Committee

The Italian legal landscape is constantly enriched by jurisprudential rulings that clarify the boundaries of criminal liability, especially in complex contexts such as public administration and insolvency proceedings. Judgment no. 30604 of 14/05/2025 (filed 12/09/2025) by the Court of Cassation, presided over by Dr. G. De Amicis and reported by Dr. F. Tondin, offers a fundamental contribution regarding the embezzlement by a liquidator in an administrative liquidation procedure, excluding the liability for failure to prevent by the members of the supervisory committee.

The Context: Embezzlement and Administrative Liquidation

To understand the scope of this decision, it is essential to frame the context. Embezzlement (art. 314 of the Italian Criminal Code) is the crime committed by a public official or a person entrusted with a public service who appropriates property or money that they possess by reason of their office. The misappropriation conduct was carried out by the liquidator, a central figure in administrative liquidation procedures (provided for by Royal Decree no. 267/1942), aimed at managing and liquidating the assets of companies in crisis.

Alongside the liquidator operates the supervisory committee, an oversight body for the liquidator's actions. The central issue, in the case of the defendant S. Nannerini, was whether the members of such a committee could be held liable for failure to prevent the embezzlement committed by the liquidator, by virtue of their "guarantor position."

In matters of embezzlement, in the event of misappropriation by the liquidator within an administrative liquidation procedure, liability for failure to prevent the event cannot be attributed to the members of the supervisory committee, as they are not burdened by the relevant guarantor position.

This maxim of the Supreme Court is decisive. It states that the members of the supervisory committee cannot be held liable for embezzlement for failing to prevent the liquidator's misappropriation. The reason lies in the absence of a "guarantor position" held by the latter. But what does "guarantor position" mean in criminal law?

The Guarantor Position: A Crucial Element

Article 40, paragraph 2, of the Italian Criminal Code states that "failure to prevent an event that one has a legal obligation to prevent is equivalent to causing it." This rule establishes liability for improper omission crimes, where a person is punished for an omission despite having a legal obligation to act. Such an obligation arises from a "guarantor position," which can stem from various sources:

• From the law: as in the case of parents towards minor children.
• From a contract: as in the case of a lifeguard who must supervise swimmers.
• From a prior dangerous action: whoever creates a danger has the obligation to neutralize it.
• From the voluntary assumption of a task: like a custodian.

In the case at hand, the Court of Cassation excluded that the members of the supervisory committee have a guarantor position that imposes on them a legal obligation to prevent the liquidator's embezzlement. Their function, although supervisory, does not equate them to a guarantor in the criminal law sense for the illicit conduct of others. The regulatory references (arts. 41, 198, 201 of Royal Decree no. 267/1942) outline administrative and accounting responsibilities, not direct management or prevention of others' crimes with coercive powers. The distinction is clear compared to, for example, the position of the board of statutory auditors (art. 2407 of the Italian Civil Code), whose liability may extend to omissions, but with a different legal framework and powers.

Implications of Judgment no. 30604/2025

This ruling by the Court of Cassation is of fundamental importance for legal certainty and for industry professionals. It clarifies the limits of criminal liability in a sensitive area such as insolvency proceedings involving public administration. For members of supervisory committees, the judgment defines their responsibilities, relieving them of a criminal burden inconsistent with the nature and extent of their powers. For liquidators, however, it reaffirms their full and autonomous responsibility for their actions, without this being "diluted" or transferred to other subjects through omission, if these subjects do not hold a specific guarantor position.

Conclusions

Judgment no. 30604/2025 of the Court of Cassation, partially annulling without referral the ruling of the Court of Appeal of Rome of 04/10/2024, offers a valuable clarification on the delicate balance between oversight and individual responsibility. By reiterating that a guarantor position is an indispensable prerequisite for criminal liability for failure to prevent, the Supreme Court contributes to defining a more transparent and predictable regulatory framework, essential for those operating in criminal law and insolvency proceedings.