The Italian legal system recognises the right of directors of limited liability companies to receive specific remuneration for the activities performed in fulfilment of their mandate. Exactly as any other professional activity, even such a role must be considered to be for valuable consideration, at least on a presumptive basis.
The director of a company, by accepting the office, acquires therefore the right to be remunerated for the activity carried out in the performance of the task entrusted and the amount of the remuneration may be determined, alternatively or cumulatively, in the Articles of association, in the deed of appointment or by an independent resolution of the shareholders' meeting (the determination of remuneration cannot be implied in the resolution approving the annual financial statements).
In the absence of such formal acts, the remuneration is not defined by the parties and any other different form of possible determination, such as an oral agreement between the director and the majority shareholder, is ineffective.
Therefore, if the Articles of association does not provide anything in this regard, the shareholders' meeting does not quantify such amount or if it determines it in an inadequate measure, the director can file a claim in Court in order to request a specific judicial determination, also by means of an equitable determination of the amount.
It is necessary to clarify that a minimum level remuneration does not exist and the directors may completely waive their fees or accept to be paid in a measure that is objectively inadequate to the activity performed. In the latter cases, the director must give his express consent, even if it can be deduced from tacit conduct that can be univocally interpreted as a waiving intention. Indeed mere inertia or silence are not considered to be sufficient.
As recently clarified by a decision of the Court of Milan, specialized business section (published on 22 June 2020), for the equitable determination of the remuneration due to a professional, the Court must take into account not only the nature of the mandate, but also the quantity and quality of the activities actually carried out by the director.
In particular, the Court must quantify the amount of the remuneration due to the director in proportion to the extent of the services performed by him and to the outcome actually achieved by the principal (i.e. the company), given that the determination of the remuneration can only be made on an equitable basis with a wide discretion of the Court.
In the light of the above, in the proceedings for the determination of the remuneration brought by a director of a limited liability company, it is necessary to indicate and prove the specific quality and quantity of the services actually performed. The mere allegation of the remuneration agreed in different business years or in favour of different directors in similar positions is not sufficient. The equitable determination of the remuneration due to the director must be based on the analysis of the data that can be obtained from the documents submitted. These documents must be jointly assessed in order to be able to determine the actual extension and relevance of the activity specifically performed by the director.