With
Judgement No. 890/16 published on 12 January 2016 (hearing held on 12 November
2015), the Fifth Criminal Chamber of the Supreme Court analysed the new wording
of Article 2621 of the Civil Code, introduced with Law No. 69 of 27 May 2015,
which sanctions the reporting of salient material facts that are untrue in the
financial statements (the legislator deleted "still subject to
evaluation" and replaced it with the adjective "salient").
The Court builds
on the meaning of the term "facts". It cannot be understood in the
literal sense of data from the phenomenal reality, but must be interpreted in
the light of the context in which the rule operates and adjusted to the purpose
that the latter aims to achieve.
Financial
statements must give a true and fair view of the financial position, avoiding
falsely reporting data that can mislead operators and, according to the Court,
it is also necessary to include evaluation indices within the concept of
"facts" (so much so that the legislator has laid down some evaluation
criteria).
In this
context, the Court held that the failure to write-down non-performing loans, in
this case equal to about 62% of total loans, while aware of the impossibility
or great difficulty in collecting them, is an offence under Art. 2621 of the
Civil Code and may result in conviction for fraudulent bankruptcy in accordance
with the combined provisions of Art. 2621 of the Civil Code and Art. 223 of
Royal Decree No. 267/1942.
The interpretation given by the judgement in
question is at odds with the previous Judgement No. 33774, filed on 30 July
2015, in which the Fifth Criminal Chamber of the Supreme Court instead held
that "the new wording of Articles
2621 and 2622 of the Civil Code (...) regarding the crime of reporting
'material facts that are untrue', no longer contains the phrase 'still subject
to evaluation', which means that it is no longer possible to class false
reporting a crime (...) when the material facts not corresponding to the true
situation are the result of existing evaluation procedures, which later prove
to have over- or underestimated or used incorrect criteria."