Italian Supreme Court Reverses Course on Burden of Proof in Clawback Actions Concerning Bank Transfers

Cicala-Riccioni & Partners secures three consistent rulings from the Italian Supreme Court: in clawback actions pursuant to Article 67, paragraph 2, of the Italian Bankruptcy Law, the burden falls on the defendant bank to plead and prove that the payment significantly and permanently reduced the debtor’s outstanding indebtedness.
Cicala-Riccioni & Partners, with a team led by name partner Carlo Cicala together with partner Nicola Mazzera, successfully represented Elmarc S.p.A. in Extraordinary Administration, a company belonging to the Antonio Merloni S.p.A. group under Extraordinary Administration, in the proceedings before the Italian Supreme Court challenging the judgments rendered by the Court of Appeal of Ancona, which had dismissed the clawback actions brought pursuant to Article 67, paragraph 2, of the Italian Bankruptcy Law against three banking institutions in connection with preferential payments made during the suspect period on bank current accounts backed by advance facilities.
By three interlocutory orders dated 21 October 2025 (Italian Supreme Court Nos. 28008, 28010 and 28011/2025), the First Civil Chamber of the Supreme Court referred the cases to a public hearing, identifying significant nomophylactic relevance in the two legal issues raised by the Extraordinary Administration’s appeals: the systematic interpretation of Article 67, paragraph 3, letter b), of the Italian Bankruptcy Law, and the possible reconsideration of the traditional distinction between “solutory” and “restorative” bank transfers for the purposes of clawback actions.
The Supreme Court upheld the appeals and overturned the challenged judgments, remanding the cases to the lower court through three consistent decisions published on 15 March 2026 (Nos. 5847, 5848 and 5849), expressly reconsidering the approach previously established by Supreme Court decision No. 277/2019 and aligning itself with the more persuasive precedent set out in Supreme Court decision No. 20834/2010, while establishing the following principle of law:
“With regard to bankruptcy clawback actions, Article 67, paragraph 3, letter b), of the Italian Bankruptcy Law presupposes that the payment into a bank current account constitutes payment of a liquid and due claim, namely one relating to an overdrawn account, and therefore cannot disregard the solutory or restorative nature of the payment itself. The non-significant and non-permanent reduction of the debtor’s outstanding indebtedness constitutes a defence barring avoidance, which must be pleaded and proven by the defendant bank in the clawback proceedings.”
The rulings qualify the provisions under paragraph 3, letter b), as a defence against the clawback of payments of liquid and due debts, with the consequence that the burden of proving the non-significant and non-permanent nature of the reduction of the debtor’s indebtedness rests with the defendant bank. The Court also confirmed the distinction between solutory and restorative payments for the purposes of clawback actions under Article 67, paragraph 2, of the Italian Bankruptcy Law. As a result, in the remand proceedings, only solutory payments — namely those made into overdrawn accounts or exceeding the granted credit facility — may ultimately be subject to avoidance.
Carlo Cicala commented
“The three judgments issued on 15 March correctly place the burden of proving the non-significant and non-permanent nature of the reduction of indebtedness on the defendant banking institution. This outcome stems from a litigation strategy developed from the very first filing, which the Supreme Court deemed worthy of discussion in a public hearing due to its nomophylactic significance.”
Carlo Cicala has been assisting the Extraordinary Commissioners of the Antonio Merloni group since the opening of the extraordinary administration proceedings, initiated by Ministerial Decree dated 25 November 2008 pursuant to Legislative Decree No. 347/2003 (the so-called “Marzano Law”).