Directors’ remuneration: clarification on the interpretation of the company’s by-laws
In the recent ruling n. 27335/2019 the Supreme Court has clarified the nature of the directors’ right to remuneration and specified when granting a remuneration to the directors can be considered not mandatory in accordance to certain provisions in the company’s by-laws. In fact, in the aforementioned ruling the Supreme Court first of all specifies that the relationship between the director and the company cannot be treated as a contractual relationship nor as any other relationship that may give rise to an employment relation between the director and the company, which would automatically determine an irrevocable right to remuneration.
With respect to corporations (“società di capitali”), Italian law recognizes a right to be fairly remunerated for their office to the company’s directors.
The Italian Civil Code, on one hand, makes express reference to the remuneration of directors of joint-stock companies (“società a responsabilità limitata”) under Article 2389, stating that the remuneration for the office as director is set at the time of the appointment of the director or resolved by the shareholders’ meeting of the company.
In relation to directors of limited liability companies, on the other hand, the Italian Civil Code does not make a specific reference to a right to remuneration but only clarifies that the appointment of the directors is attributed to the quotaholders, who are also entitled to grant them a compensation for their office.
The absence of a reference to a “right to remuneration” does not entail that their office shall be deemed gratuitous; on the contrary, the absence of an ad hoc provision is due to the increased level of flexibility granted to the members of limited liability companies, who, by the way, may also be directors of the company and members of it at the same time.
In general, case law specifies that, when accepting the office, the director simultaneously acquires the right to be granted a remuneration for the office (ex multis, C. Cass. n. 24139/2019).
In the light of the aforesaid legal framework, the recent ruling n. 27335/2019 issued by the Supreme Court has offered a useful and clarifying analysis on whether the director’s right to obtain a remuneration is automatically granted by the law or whether, on the contrary, a resolution or a specific provision of the company’s by-laws are needed.
The Supreme Court refuses to consider that the director’s right to remuneration arises ex lege; in fact, in the aforementioned ruling the Supreme Court first of all specifies that the relationship between the director and the company consists in a “relationship tout court”, thereby meaning that such relationship cannot be treated as a contractual relationship nor as any other relationship that may give rise to an employment relation between the director and the company, which would automatically determine an irrevocable right to remuneration.
From that standpoint the Supreme Court argues that, in presence of provisions in the company’s by-laws setting forth that a remuneration “may” be granted to the directors and lacking a resolution in this direction, no remuneration to the directors shall be due.
With respect to the facts giving rise to this ruling, it is worth mentioning that the aforementioned interpretation has been rendered in relation to a claim raised “in via surrogatoria” by the creditors of an individual on its behalf, since the latter held offices as director in several limited liability companies without receiving any remuneration albeit (in the creditors’ view) being entitled to it. The creditors’ request to be satisfied with the monies deriving from the remuneration that should have been granted to the director has been rejected in consideration of the arguments set out above.