Do BoD members have the right to claim remuneration even in the absence of a shareholder resolution or a by-laws provision?
The main principle of the above mentioned issue lies in art. 2389 of the Italian Civil Code, from which could be deducted that the activities carried out by the directors are not free of charge.
The above mentioned rule was recently confirmed by the Supreme Court (no. 24139/2018) which stated: “with the acceptance of the appointment the director of a company acquires the right to be compensated for the activity he carries out in accordance with the appointment“. Furthermore, in order to strength the principle that the appointment is not supposed to be free of charge, the Supreme Court disposes that the right to receive a compensation does not require an express request issued by the director.
Reading the above mentioned ruling it can be deducted that the director has the right to waive the compensation, which is considered [the compensations] as an available right. It means that to the relationship between BoD members and company the rule stated in art. 36 of the Italian Constitution does not apply (indeed it imposes a fair retribution, as a fundamental right, only for employment relationships).
So it is clear that the issue of this article is strictly connected to the legal qualification of the company/BoD members relationship (see ruling of the Supreme Court no. 1545 of 2017, analysed with article dated 8.08.2019: “Role and qualification of the director of limited liability companies“).
With reference to the ways with which the waiver of remuneration is allowed, although in the past there have been contrary cases, the Supreme Court currently considers valid a waiver which arises from the bylaws, and also the waiver which results from directors’ conclusive behaviours which are unequivocally directed in order to prove that the appointment is assumed free of charge (from this point of view it is interesting to report that for the case law the director’s silence, even if extended in time, could not be considered as unequivocally).
In the current case law scenario, the most recent Supreme Court ruling no. 27335/2019 states that: “the director has not an automatic legal right to receive compensation”. It should be noted that the above ruling quotes the same ruling which is also quoted by another Supreme Court ruling which, on the contrary, disposes that the director has the automatic legal right to be compensated if not stated different. Actually, it is weird that both the ruling, even if divergent, mention the same Supreme Court ruling no. 12382/2017 which seems to approve both point of view.
In the meantime of a Supreme Court clarification and before the case law will be formed on such issues it is fundamental to regulate either by contract or by resolution or bylaws the right of the BoD members to receive or not receive remuneration.