De facto director in bankruptcy offences: Cassation no. 8568/2024 on the role of "dominus" in inactive companies

The criminal bankruptcy system has long recognised the figure of the de facto director, a person who, despite lacking formal appointment, effectively manages a bankrupt company. With judgment no. 8568 of 12 December 2024, filed on 3 March 2025, the Court of Cassation revisits the topic, reaffirming a principle of great practical impact: when a company is already inactive and heading towards bankruptcy, the only true parameter for attributing the status of de facto director is the continued role of dominus by the former de jure director. This ruling deserves analysis also in light of Articles 216 and 223 of the Bankruptcy Law and previous case law.

Legislative and Jurisprudential Context

Articles 216 and 223 of the Bankruptcy Law govern simple and fraudulent bankruptcy, respectively, extending punishability to "anyone who has contributed to the insolvency" and, more specifically, to directors, general managers, liquidators, and "those who have effectively exercised the powers of administration." It is precisely this last expression that has allowed case law to develop the category of the de facto director.

Already with Cass. no. 2514/2024, the Court had clarified that the assessment does not require a coincidence with the corporate body, but proof of continuous and significant management power. The new ruling builds on this line of reasoning but addresses the peculiar scenario of a company that is no longer operational.

In matters of bankruptcy offences, when the cessation of the de jure director's office occurs during the company's inactivity phase because it is already heading towards bankruptcy, proof of the de facto director's position translates into proof of the "dominus" role maintained even after the formal appointment of the new director, given that it is not conceivable to ascertain symptomatic elements of organic integration – relating to relationships with employees, suppliers, or customers, or any management sector – in an entity that legally exists only formally.

This passage emphasises that, in the absence of real business activity, the traditional indicators (contracts, internal directives, market relations) that usually prove de facto management cannot exist. Therefore, only the verification of who, in practice, continues to dictate the crucial decisions of the bankruptcy remains.

The Core of the Ruling: The Concept of "Dominus"

In the case at hand, the defendant D. S. had resigned and was replaced by a new formal director. However, the Court of Appeal of Rome, confirmed by the Court of Cassation, held that the defendant had maintained substantial control over crucial decisions, particularly regarding the management of residual assets and relations with the trustee.

• Decision-making Continuity: emails and minutes demonstrated that strategic choices still originated from the former director.
• Lack of Successor's Autonomy: the new director appeared to be a mere executor of instructions.
• Absence of Ordinary Activity: with no more employees or production, mere "command" serves as proof.

The Court therefore deems the "dominus" factor sufficient, overcoming the need for multiple symptomatic indications required in cases of operational companies.

Practical Implications for Professionals and Businesses

The ruling offers clear guidance to those operating in corporate and insolvency law:

• Resignation from the administrative body, if not accompanied by an effective cessation of interference, does not shield from criminal liability.
• The "shadow director" can emerge even in the pre-bankruptcy phase, when the company is effectively an "empty shell."
• It is advisable to minute every handover and to make the new governance autonomous.

Conclusions

With decision no. 8568/2024, the Court of Cassation reinforces an approach that protects transparency in corporate crises: the former director who continues to exercise command power remains criminally liable, even if the company no longer conducts economic activity. This serves as a warning to those who, through mere formal resignations, hope to evade the consequences of bankruptcy offences.