Subordination – Concept of financing – Assessment of the conditions – Relevant point in time (Italian Supreme Court, 12 March 2026, No. 5582)

By order No. 5582 of 12 March 2026, the Italian Supreme Court (Corte di Cassazione), concerning the subordination of the repayment of shareholders’ loans in favour of the company (Art. 2467 Italian Civil Code), reaffirmed that:

• the notion of “financing”, for the purposes at issue, also includes the granting of security interests or, as in the present case, personal guarantees (see Cass. No. 30054/2023);

• the existence of the statutory conditions giving rise to subordination must be assessed both at the time when the financing was granted and at the time when repayment is requested (see Cass. No. 15196/2024).

It was further clarified that where the company opposes the repayment of the financing requested by the shareholder, the burden of proving the existence of the conditions set out in Art. 2467 of the Italian Civil Code lies with the company.