A loan to the parent company, a payment made for a sister company, a bank guarantee granted in the interest of the supply chain: an intragroup transaction is not in itself a misappropriation. The problem arises if the company transferring money, assets, or credit does not receive a real consideration and is subsequently subjected to judicial liquidation. At that point, the choice may also be re-examined from a criminal law perspective.
If you are looking for a criminal defense in Milan for a challenge of this kind, I want to clarify first of all which differences truly matter. We will see why utility for the holding company is not enough, when a future advantage may be relevant, what changes between a loan, cash pooling, and a guarantee, and how to distinguish a risky entrepreneurial decision from an impoverishment without a recognizable economic reason for the individual company.
When an intragroup transaction can be challenged as misappropriation
The challenge concerns the outflow of value from the individual company. Money, assets, credits, guarantees, and waivers of claims can affect the assets that constitute the collateral for the creditors of that company. Belonging to a group may explain the economic context of the choice, but it does not eliminate the separate assets and legal autonomy of each business.
In the Business Crisis and Insolvency Code, Article 322 regulates fraudulent bankruptcy of the entrepreneur in judicial liquidation; Article 329 extends, in the envisaged cases, the discipline to directors, general managers, statutory auditors, and liquidators of companies. Misappropriation is among the conduct that can assume relevance. The text of the Business Crisis and Insolvency Code places these rules among the offenses connected to judicial liquidation.
A loss does not automatically equate to a crime. An investment can turn out to be wrong, a debtor can become insolvent, and a joint project can fail even after an initially reasonable choice. The criminal issue changes, however, if the transaction deprives resources without creating for the company that employs them an effective credit, an adequate consideration, or a concrete and reasonably foreseeable benefit.
Therefore, substance counts, not the label given to the relationship. Calling a transfer a “loan” is not enough if there is no maturity, a concrete possibility of repayment, and conditions compatible with the interest of the lending company. Similarly, an accounting entry or a resolution can document a fact, but they do not replace a real economic reason.
The group does not make the assets of the companies common
Each company retains its own assets and its own creditors. Unitary management, directors in common, or the use of the same brand do not authorize moving resources from one company to another without considering the effect on the one making the sacrifice. Indeed, a creditor of the subsidiary does not for this reason become a creditor of the entire group.
This distinction is decisive when an operating company supports the parent company or another related business. The transfer may have a legitimate industrial logic: preserving a sales channel, protecting a necessary supply, reducing common financial costs, or avoiding the interruption of integrated production. But the benefit must also be able to accrue to the company that renounces the resource, not just to the other companies in the group.
The Court of Cassation has specified that mere participation in a group is not sufficient to exclude the misappropriating character of the transfer. It is necessary to identify a positive balance of operations or a concrete and well-founded predictability of advantages for the apparently damaged company. The principle is recalled in the review of the Court of Cassation on intragroup transactions and cash pooling.
The general utility of the group remains an incomplete datum. Saying that the money served to “save the group” does not clarify whether the lending company had a concrete prospect of recovering the credit, preserving its own revenues, or obtaining an advantage equivalent to the risk assumed. The assessment requires connecting the operation to measurable facts: contracts, cash flows, credit positions, guarantees, and prospects available at the time of the decision.
Compensatory benefits: what characteristics they must have
The compensatory benefit is not a formula that justifies any sacrifice. It indicates the benefit that can rebalance, for the impoverishing company, the initially negative effect of a transaction carried out in the logic of the group. It does not necessarily have to coincide with immediate payment, but it must be identifiable and proportional.
The ruling of the Fifth Criminal Section no. 42570 of 2024 indicated that the advantages achieved or reasonably foreseeable, suitable for excluding the misappropriating character of an intragroup transaction, must be certain, fair, and proportional, with a value at least equivalent to the economic sacrifice borne by the company later subjected to procedure. The same ruling recalls the importance of reliable documents, such as business plans, minutes, contracts, correspondence, and accounting evidence. The reference is in the criminal review of the Court of Cassation of November 2024.
The benefit must be assessed at the time of the choice
It is not necessary for every forecast to be fully realized. What matters is that, when the transaction is decided, the expected advantage has verifiable bases. A repayment plan consistent with the debtor's financial situation, a commercial contract already in progress, or a supply chain from which revenues derive for the lending company can make the interest of the transaction understandable.
On the contrary, an explanation constructed after the emergence of the crisis has a different weight compared to a documented assessment before the transfer. Chronology is often decisive: it is necessary to understand what was known about the solvency of the companies, what commitments were already assumed, and what return was reasonable to expect when the money went out or the guarantee was provided.
The value of the advantage must be comparable to the sacrifice
A remote advantage does not compensate for an immediate and significant loss. If a company transfers liquidity necessary to pay suppliers and taxes, the prospect of a future generic benefit for the group is not sufficient. The case is different if the transaction protects an essential contract for the same company, with estimable revenues and with a risk proportional to the expected result.
The subsequent restitution of the sums can be a relevant fact, but it does not automatically close the issue. It must be considered whether the credit was due, whether repayment was expected and realistically obtainable, when it intervened, and whether the lending company could sustain the outflow at the time of the transfer. A credit counts as consideration only if it has real economic consistency.
Loans, cash pooling, and guarantees: different problems
Not all intragroup operations expose to the same risk. A loan creates, at least on paper, a credit of the disbursing company towards the beneficiary company. To understand whether this credit represents an effective consideration, the amount, interest, maturity, guarantees, debtor's solvency, and the concrete possibility of recovery assume relevance.
In cash pooling, that is, in the centralization of the liquidity of multiple companies in one account or with a group entity, financial efficiency can constitute an economic reason. However, centralized management must leave clear traces: reciprocal balances, calculation criteria, debits and credits, conditions of use of the sums, reports, and rules on restitution. Without these elements, the passage of liquidity can appear as a withdrawal without effective discipline.
The guarantee provided for a debt of a sister company poses an even different problem. The guarantor company does not transfer money immediately, but exposes its assets to the risk of having to pay if the debtor does not fulfill. The risk assumed must be connected to an interest of the guarantor, for example to the continuity of an indispensable supply or to the safeguarding of contracts from which it directly derives income.
A guarantee granted in favor of a company already in serious difficulty requires particular attention. If the exposure exceeds the guarantor's asset capabilities and the benefit for the latter remains merely eventual, the declared industrial reason may not be sufficient. It is not the negative outcome, by itself, that demonstrates the illicit nature of the choice; it is the relationship between known risk, concrete interest, and the company's capacity to bear it.
Personal roles and responsibilities in corporate management
The formal qualification alone is not enough to establish criminal liability. For each person involved, it is necessary to distinguish the effective role in the decision, the powers exercised, the delegations, the available information, and the contribution attributed to the single operation. A member of the administrative body, a general manager, a liquidator, and a statutory auditor can find themselves in different positions even in front of the same financial flow.
For directors, it is relevant to understand whether they resolved, disposed of, or endorsed the operation and on what data. For control functions, the point is not the existence of the group, but the presence of concrete signs of anomaly and the role held in front of them. The assessment must remain individual: it is incorrect to automatically transform every corporate connection into personal liability.
It is also important to distinguish the lexicon of current legislation from that used in acts and rulings relating to bankruptcy law. Since July 15, 2022, the Crisis Code has entered into force, except for provisions that had a different effective date; prior events and the date of opening of the procedure can affect the regulatory framework to be applied. The date of the facts is not a terminological detail, because it avoids overlapping rules and definitions belonging to different disciplines.
How to read a challenge and prepare a defense
The defense starts from the single challenged transfer. It is not sufficient to generically recall the history of the group or the existence of economic relations between companies. It is necessary to separate loans, payments, transfers, guarantees, and offsets, identifying for each the date, amount, beneficiary, title of the relationship, and concrete consequence on the assets of the company that bore the cost.
The second step concerns the interest of the impoverished company, that is, the one that lost liquidity, assets, or credit capacity. The useful question is simple: what did it receive in exchange? The answer can be a solvent credit, a consideration, a financial saving, the protection of its own revenues, or a documentable compensatory benefit. Instead, it is not enough to recall a group project without showing the nexus with the position of the involved company.
Documents are relevant when they explain this nexus. Contracts, minutes, correspondence, bank statements, financial plans, treasury reports, and commercial data can show whether the transaction was regulated and whether the benefit was foreseen before its execution. The consistency between documents and real flows counts more than the quantity of paperwork.
If a proceeding is already underway, it is not useful to create artificial reconstructions after the facts. Instead, it is essential to keep existing documents in order and reconstruct a faithful chronology. The comparison must distinguish the overall crisis of the group from the single challenged transaction, the negative economic result from the original choice, and the abstract corporate role from the contribution concretely attributed to the investigated or accused person.
Preventive choices and practical alternatives
A clear intragroup relationship reduces ambiguity, but does not replace economic substance. Before arranging a loan, a liquidity transfer, or a guarantee, expressed conditions, deadlines, calculation criteria, and motivations referred to the individual company help make the operation verifiable. Above all, they serve to clarify what risk is assumed and what return is expected.
When a company is already under financial tension, the margin to support other companies in the group may narrow. The crisis increases the weight of the verification on one's own interest. Assistance can still fit into an economically sensible program, but the expected repayment or advantage must remain concrete and proportional to the loss of liquidity or the risk the company assumes.
Faced with a challenge, one path consists in demonstrating the existence of a true consideration or verifiable compensatory benefits; another consists in clarifying that the challenged operation was not decided or managed by the person called to answer. The two issues are distinct: the first concerns the economic effect of the act, the second the personal contribution attributed to each subject.
To prepare a useful comparison, the act of challenge or the notice received, intragroup contracts, available minutes, banking and accounting documentation relating to the indicated flows, in addition to the documents showing the expected benefit for the company that bore the sacrifice, can be useful. If you wish to examine a concrete situation, you can contact me.
Frequently asked questions
Is an intragroup loan always risky on a criminal level?
No, the loan is not prohibited in itself. The risk can arise if the lending company deprives itself of resources without obtaining a truly recoverable credit, a consideration, or a concrete compensatory benefit. Solvency of the debtor, deadlines, guarantees, economic interest of the lender, and conditions existing at the time of disbursement are central elements.
Is the advantage for the entire group enough to exclude misappropriation?
No, the general utility of the group is not sufficient. The benefit must also be attributable to the company that transferred money, assets, or credit capacity. The Court of Cassation requires achieved or reasonably foreseeable advantages, certain, fair, and proportional compared to the initial economic sacrifice of the involved company.
Does a board of directors resolution exclude liability?
No, the resolution is an item of evidence, not an automatic protection. It can clarify who decided, what information was available, and what advantage was foreseen. However, it does not replace the verification of substance: a formally minuted decision remains challengeable if the operation does not present a consideration or a concrete interest for the company supporting it.
Does the subsequent restitution of sums eliminate any problem?
The timing and substance of restoring the assets are crucial. Effective and complete restoration before the declaration of bankruptcy or opening of judicial liquidation may exclude asset diversion under the principle known as bancarotta riparata. It must remove the harm to creditors’ security: partial repayments or mere circular accounting entries within the group are insufficient. These criteria are explained in the Court of Cassation summaries on restored assets. Payment after the proceedings open does not erase an offence already completed.
Can I invoke cash pooling if a written contract does not exist?
You can reconstruct a practice, but verifiable data are needed. In the absence of a contract, bank statements, accounting records, reports, balance calculation criteria, applied rates, and evidence of repayments assume greater importance. Centralized liquidity management alone does not demonstrate the benefit for the company in difficulty.
Institutional references
For the regulatory framework relating to offenses in judicial liquidation, it is useful to consult the Business Crisis and Insolvency Code on Normattiva. For criteria on compensatory benefits in intragroup transactions, the review of the Court of Cassation reporting ruling no. 42570 of 2024 remains central.