Bankruptcy and the Role of the De Facto Director: Indications from the Court of Milan (Sec. III, judgment 12486/2023)

The judgment of the III Criminal Section of the Court of Milan (no. 12486/2023 of 14 September 2023) represents a significant step in jurisprudence regarding bankruptcy offenses, clarifying the boundaries of criminal liability for fraudulent bankruptcy involving assets and fraudulent bankruptcy involving documents.

The Court fully accepted the defense line supported by lawyers Roberto A. Catanzariti and Antonio Catanzariti of the Legal Aid team, recognizing the complete non-involvement of two clients in the management of the bankrupt company and issuing a full acquittal for them.

1. THE CENTRALITY OF THE EFFECTIVE MANAGERIAL ROLE

The Court reiterated that, in proceedings for fraudulent bankruptcy, what matters is not the formal position, but the effective exercise of management powers.

The de facto director is fully liable for misappropriation or accounting omissions, but there is no automatic liability for those who have not performed concrete managerial functions.

2. FRAUDULENT BANKRUPTCY INVOLVING ASSETS AND DOCUMENTS

The decision distinguished two profiles of liability:

• Fraudulent bankruptcy involving assets (art. 216, paragraph 1, no. 1 L.F.): attributable only to those who have actually carried out misappropriations or acts depleting the company's assets;
• Fraudulent bankruptcy involving documents (art. 216, paragraph 1, no. 2 L.F.): applicable to those who, with intent, have concealed or destroyed accounting records such as to prevent the reconstruction of the assets.

The Court excluded that such conduct could be attributed to the clients defended by Legal Aid, issuing a full acquittal.

3. PERSONAL CRIMINAL LIABILITY AND BURDEN OF PROOF

The judgment refers to the principle of personal criminal liability (art. 27 Cost.), stating that it is not sufficient to emphasize nominal roles or corporate relationships: proof of effective managerial involvement is required.

The Public Prosecutor's Office failed to provide concrete evidence in this regard, and the Court accepted the defense arguments, excluding any involvement of the two defendants in the contested conduct.

CONCLUSIONS

The Court of Milan – III Criminal Section, judgment no. 12486/2023 has established clear guidelines regarding bankruptcy offenses:

• Only the de facto director is criminally liable for asset misappropriation and accounting irregularities;
• There is no automatic liability for those who do not exercise concrete managerial functions;
• Fraudulent bankruptcy, whether involving assets or documents, always requires rigorous proof of specific conduct and not based on mere circumstantial reconstructions.

For Legal Aid, the judgment represents a significant success: the acquittals obtained confirm that in bankruptcy offenses, liability is not presumed, but must be demonstrated with precise and unequivocal evidence. The defense strategy implemented proved, once again, to be solid and convincing.