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Carlo Cicala, name partner Cicala Riccioni & Partners

Carlo Cicala. Italian Supreme Court Victory on Burden of Proof in Bank Remittances Clawback Actions

Cicala-Riccioni obtains three concurring rulings of the Supreme Court: the non-substantial and non-durable reduction of the debtor's exposure constitutes an impeding fact, to be alleged and proved by the defendant bank

Cicala-Riccioni & Partners, through its name partner Carlo Cicala (pictured), together with partner Nicola Mazzera, successfully represented Elmarc S.p.A., a company of the Antonio Merloni group in extraordinary administration, in the cassation proceedings brought against the rulings of the Court of Appeal of Ancona, which had rejected the clawback actions filed under Article 67, paragraph 2, of the Italian Bankruptcy Law against three leading credit institutions in connection with the solutory remittances made during the suspect period on bank current accounts assisted by advance accounts.

By three interlocutory orders dated 21 October 2025 (Cass. nos. 28008, 28010 and 28011/2025), the First Civil Section of the Italian Supreme Court referred the cases to a public hearing, finding particular nomophylactic relevance in the two questions of law raised by the appeal filed by the Extraordinary Administration: the systematic classification of Article 67, paragraph 3, letter b), of the Italian Bankruptcy Law, and the possible overcoming of the traditional distinction between solutory and restorative bank remittances for the purposes of clawback.

Following the public hearing of 12 February 2026, in line with the conclusions of the Prosecutor General partially in favour of the procedure, the Supreme Court upheld the appeals and quashed the contested rulings, remanding the cases to the Court of Appeal of Ancona in a different composition. By three concurring rulings issued on 15 March 2026 (nos. 5847, 5848 and 5849; President Terrusi; Rapporteur Zuliani for the first ruling and Rapporteur D'Aquino for the other two), in express reconsideration of the line of authority inaugurated by Cass. no. 277/2019, and in continuity with the more sound approach of Cass. no. 20834/2010, the First Civil Section stated the following principle of law:

"In matters of bankruptcy clawback actions, Article 67, paragraph 3, letter b), of the Italian Bankruptcy Law, as amended by Legislative Decree no. 5 of 2006, requires the bank remittance to constitute a payment of a liquid and enforceable debt, i.e. a remittance pertaining to an overdrawn account, thereby not disregarding the solutory or restorative nature of the remittance itself, and qualifies the non-substantial and non-durable reduction of the debtor's exposure as an impeding fact, which must be alleged and proved by the defendant in the clawback action."

The rulings qualify the regime of paragraph 3, letter b), as an autonomous exemption from the clawback of payments under paragraph 2, with the consequence that the burden of pleading and proof of the non-substantial and non-durable nature of the reduction in the debtor's exposure lies with the defendant bank. The Court has confirmed the distinction between solutory and restorative remittances for the purposes of clawback under Article 67, paragraph 2, of the Italian Bankruptcy Law, with the consequence that, in the proceedings on remand, only solutory remittances (i.e. those made on an overdrawn current account or exceeding the credit facility granted) may be subject to clawback.

Carlo Cicala has been assisting the Extraordinary Commissioners of the Antonio Merloni group since the opening of the procedure by Ministerial Decree of 25 November 2008, pursuant to Law Decree no. 347/2003 (the so-called "Marzano Law").

Italian Supreme Court

Carlo Cicala. Italian Supreme Court Victory on Burden of Proof in Bank Remittances Clawback Actions

Cicala Riccioni & Partners