Improper fraudulent bankruptcy and social security obligations: analysis of Cass. pen. no. 12617/2025

The Court of Cassation, Criminal Section V, with judgment no. 12617 of March 10, 2025 (filed April 1, 2025), returns to address the delicate overlap between cooperative labor law and criminal bankruptcy law. The case involves the president of an artisan cooperative society, G. G., convicted of improper fraudulent bankruptcy following systematic failure to pay social security contributions due to members, formally classified as self-employed workers but de facto subordinate. The Supreme Court annuls with referral, confirming however the configurability of the crime.

The core of the decision

In terms of improper fraudulent bankruptcy, the criminal offense under art. 223, paragraph 2, no. 2, of the bankruptcy law is constituted by the conduct of the president of an artisan cooperative society who systematically failed to fulfill social security obligations relating to members who, although classified as self-employed workers and therefore abstractly responsible for paying social security contributions themselves, actually performed dependent work activities. The Court emphasizes that the failure to pay contributions, if repeated and capable of dispossessing the company of the resources necessary for its regular management, takes on the nature of a "dolous operation" within the meaning of art. 223, para. 2, no. 2 of the bankruptcy law. The apparent autonomy of the members is irrelevant: what matters is the factual reality of the employment relationship, assessed based on the criteria of art. 2094 of the Civil Code and law 142/2001 on cooperatives. In this way, the obligation to pay falls on the management body, whose non-compliance aggravates the insolvency and constitutes the subjective element of intent.

Regulatory and jurisprudential aspects

The ruling follows an established interpretative line (Cass. nn. 29586/2014, 24752/2018, 16111/2024) according to which:

• improper bankruptcy due to dolous operations presupposes conduct that causes or aggravates insolvency;
• intent is inferred from systematic behavior contrary to the law or social interests;
• the formal qualification of the employment relationship does not prevail over the economic substance of the operation.

Art. 223 of the bankruptcy law protects creditors from the distorted use of company resources. In the case in question, the failure to pay contributions generated a debt towards social security institutions, draining liquidity and causing bankruptcy. The Court also refers to articles 2-4 of law 443/1985, which require insurance coverage for artisans, and art. 1, para. 3, of law 142/2001, which equates member-workers to employees regarding social security protections.

Practical implications for directors and consultants

The decision sends a strong warning to the management bodies of cooperatives – but also of capital companies – regarding the need to:

• verify the actual nature of the relationship with member service providers;
• ensure the correct payment of contributions, especially in the presence of de facto subordination;
• document management choices to demonstrate the absence of intent in case of crisis.

For crisis professionals (trustees, commissioners, advisors), the judgment represents a useful tool for identifying profiles of criminal liability of directors and evaluating civil liability actions under art. 2394 of the Civil Code or clawback actions.

Conclusions

Cassation no. 12617/2025 confirms that repeated failure to pay contributions can constitute a genuine "dolous operation" relevant for improper fraudulent bankruptcy. The formal status of member autonomy is not sufficient to exclude the director's liability if, in practice, the company organization is based on services rendered under a subordinate regime. For corporate bodies, the watchword must be compliance: only accurate management of social security obligations and alignment with labor regulations can avoid the risk of dual litigation, criminal and bankruptcy-related.