False certifications and reports

False certifications and reports: liability and defence

False certifications and reports is the offence that protects the reliability of the information provided by the professional within the crisis and insolvency regulation tools, in the cases expressly identified by law.

Article 342 of the Code of Business Crisis and Insolvency sanctions the disclosure of false information and the omission of relevant information concerning the truthfulness of the data contained in the plan or in the documents attached to it. Criminal liability must be distinguished from professional error and from the forward-looking assessments typical of the certifier's activity.

When false certifications and reports arise

The offence arises when the professional, in the reports or certifications expressly referred to by Article 342, discloses false information or omits to report relevant information concerning the truthfulness of the data contained in the plan or in the attached documents.

The conduct may therefore take two forms:

• by commission, through the disclosure of false information
• by omission, through the failure to indicate relevant information that the professional was required to set out in the certification or report

Not every inaccuracy, incompleteness or professional error is criminally relevant. It is necessary to verify that the conduct falls within the statutory offence and, subjectively, the awareness of the falsity of the information disclosed or of the relevance of the information omitted.

The perpetrator

False certifications and reports is a special offence. It may be committed by the professional called upon to draft the specific reports or certifications identified by Article 342 within the crisis regulation tools to which the provision expressly refers.

The subjective delimitation is particularly important because the liability under Article 342 cannot be automatically extended to any consultant who took part in preparing the plan or assisted the company.

It is therefore necessary to identify the function actually performed by the professional, the content of the engagement received and the specific report or certification to which the charge refers.

Truthfulness of data and professional assessments

One of the most delicate aspects concerns the distinction between the truthfulness of the data and the technical assessments made on the basis of that data. Article 342 confines criminally relevant conduct to false information or relevant omissions concerning the truthfulness of the data contained in the plan or attached documents.

According to the principles established by the Court of Cassation, the forward-looking assessment of the economic feasibility of the plan cannot, as a judgment about the future, be independently qualified as true or false.

This does not mean, however, that the professional's assessment activity is criminally irrelevant in all its components. What matters is the informational basis on which the judgment is built: the data used must be correctly represented and relevant information cannot be knowingly concealed.

The Supreme Court has thus distinguished the forward-looking judgment itself from the truthfulness and completeness of the information underlying it. The false representation or omission of a relevant corporate datum may constitute the offence even where that datum is destined to affect the subsequent assessment of the plan's feasibility.

This distinction is one of the main points for verifying the professional's liability.

The professional's verification duties

The certifier's activity cannot be reduced to the mere reproduction of the information received from the entrepreneur. The professional must carry out the checks required by the specific certification and base his conclusions on an informational basis adequate to the function assigned to him by law.

In criminal terms, however, the inadequacy of the professional verification must not be confused with criminally relevant falsity. Any insufficiency of the control activity, breach of professional rules or evaluative error does not automatically entail liability under Article 342: the statutory conduct and the related subjective element must be proved.

The defence must therefore reconstruct the information available at the time of the certification, the activities actually carried out by the professional, the documentary sources used and the technical path followed to reach the conclusions set out in the report.

The subjective element

The basic offence requires general intent. It is necessary to establish the awareness and will to disclose false information or to omit relevant information concerning the truthfulness of the data covered by the report or certification.

For the basic offence it is not required that the professional pursue the aim of obtaining an unjust profit for himself or others, nor that he intend to cause harm to creditors.

It follows that criminal liability cannot be based solely on the erroneous nature of the professional assessment or on the subsequent failure of the forecasts contained in the plan. The assessment must refer to the state of knowledge existing when the report or certification was prepared.

Aggravating circumstances

Article 342 provides for two specific aggravating circumstances. The first applies where the act is committed in order to obtain an unjust profit for oneself or others. The second applies where the act results in harm to creditors; in that case the penalty is increased by up to one half.

The distinction also matters evidentially: the aim of unjust profit is not a necessary element of the basic offence, while harm to creditors requires proof of the prejudicial consequence resulting from the conduct.

Penalties

The professional who commits the conduct described in Article 342 is punished with imprisonment from two to five years and a fine from EUR 50,000 to EUR 100,000. Where the act is committed in order to obtain an unjust profit for oneself or others, the penalty is increased. Where the act results in harm to creditors, the penalty is increased by up to one half.

Legal Aid's defence strategy

In proceedings for false certifications and reports, the criminal assessment must remain distinct from the civil or professional evaluation of the certifier's activity. The defence first requires reconstruction of the engagement conferred, the information available at the time of the certification and the checks actually performed.

The defence activity focuses in particular on:

• identifying the data specifically challenged as false or omitted
• verifying their actual relevance to the certification
• reconstructing the information sources available to the professional
• distinguishing corporate data from technical forward-looking assessment
• verifying the procedures and criteria actually used
• establishing awareness of the falsity or of the omission
• distinguishing any professional error from statutorily typical conduct
• verifying any aggravating circumstances of unjust profit and harm to creditors

The ex ante reconstruction of the professional activity is particularly important. The subsequent failure of the economic forecasts contained in the plan does not, on its own, allow the certification to be retrospectively qualified as false.

The defence must therefore compare the charge with the information actually available at the time of the engagement and verify whether the prosecution has identified a concrete piece of false information or a relevant omission, rather than merely criticising the outcome of the professional assessment.

Related practice areas

• Fraudulent bankruptcy
• Preferential bankruptcy
• Simple bankruptcy
• Improper bankruptcy
• Abusive resort to credit
• Corporate crimes
• Administrative liability of entities – Legislative Decree 231/2001

Frequently asked questions

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