By Silvia Cano Palencia
The current remark goals to synthesize the current jurisprudence that the Supreme Court docket has established with respect to 2 very related articles within the area of the remuneration of directors; 190 and 217 LSC.
The talk can deal with two questions: The primary is what rights – within the sense of artwork. 190.1 – oblige the accomplice to abstain as a consequence of a battle of curiosity and the second is whether or not it’s doable to retroactively approve the utmost annual quantity of the administrator’s remuneration
Concerning the primary query, each courts initially attain the identical conclusion: the social administrator is in battle. The battle lies in the truth that it is going to attempt to get hold of the utmost doable remuneration as such, whereas the corporate will attempt to restrict its remuneration to that which maximizes social profit. The collision materializes when the administrator intervenes within the voting in her capability as a accomplice (or, precisely, in her capability as administrator, additionally, of the accomplice firm).
The Provincial Court docket of Alicante considers that the corporate has not granted a proper within the sense of artwork. 190.1 c) to the administrator, assigning her a wage as common director as a result of stated “concession” is expressly offered for within the bylaws, due to this fact it can’t be thought of without any consideration ex new¸ however as a sort of growth of the partnership contract. Subsequently, discarding the applicability of the primary paragraph of article 190 LSC, the Court docket considers the subsumption of the idea in query in artwork. 190.three and examines whether or not the accepted remuneration damages the company curiosity. The burden of proof corresponds, inside the framework of this principle and every time there’s a battle of curiosity, to society. The Listening to concludes that the agreed remuneration doesn’t hurt the company curiosity. The Listening to considers that there isn’t any injury to the company patrimony because of the average quantity of the agreed upon remuneration in comparison with the annual advantages of the managed firm.
The Supreme Court docket makes use of one other argument however, on this level, reaches the identical conclusion because the Audiencia. The accomplice should be disadvantaged of the proper to vote ex artwork. 190.1 c) within the case of unilateral rights attributions by the corporate and part three shall apply within the case of a bilateral relationship such because the one between the administrator and the corporate. The Court docket concludes that, though there’s a battle of curiosity, no proper has been granted inside the that means of artwork. 190.1 c) and having been confirmed within the earlier occasion that the vote of the administrator was important for the adoption of the decision, the Supreme Court docket, just like the Court docket, examines whether or not there may be damage to the social curiosity and its conclusion is the alternative of that of the Viewers.
Within the first place, the Supreme Court docket says that the corporate has not lifted the burden of proof that’s incumbent upon it in accordance with artwork. 190.three LSC. That’s, the corporate has not superior arguments or info that permit it to conclude that the agreed remuneration is in accordance with the company curiosity, which might be adequate to uphold the problem of the settlement. However, from the subsequent step of the sentence, it may be deduced that the Supreme Court docket considers that the adopted settlement is opposite to the social curiosity:
Not solely has the defendant not justified the reasonableness of the settlement for the corporate, however the proof within the occasion exhibits the alternative. The wage improve, which fits from about 8,600 euros monthly gross to about 19,500 euros monthly gross, responds to assuming the features of common director that additionally overlap with these of the place of sole administrator, which has its personal remuneration, and entails a financial burden for society that, though it could be borne by the entity, disproportionately favors those that management the vast majority of society to the detriment of the minority.
The second query has to do with the interpretation of artwork. 217.three LSC that establishes that
“The utmost quantity of the annual remuneration of all of the directors of their capability as such should be accepted by the final assembly and can stay in drive till its modification is accepted”.
Though the obvious readability of the principle might lead us to suppose that few doubts can come up on this regard, the Courts in query don’t discover a level of settlement.
The Listening to understands that the settlement should be adopted earlier than the beginning of the fiscal yr by which such most quantity shall be utilized. So, whether it is accepted when the directors are already amassing their remuneration, artwork. 217.three LSC. It brings up the transitory provision of the Law 31/2014, of December 3, which modifies article 217 LSC, offering that the variations launched by it come into drive on January 1, 2015 and should be adopted “On the first common assembly held after this date” and, above all, article 13 of the corporate’s bylaws that orders the utmost quantity to be set “for every year”. The Supreme Court docket doesn’t enter into the difficulty because it has resolved the enchantment, as defined, upholding it and annulling the settlement that accepted the remuneration. In any case, the Judgment of the Provincial Court of Barcelona of March 11, 2021 which determined in the other way to that of Alicante and in favor of the chance that the board approve a posteriori the utmost quantity of the remuneration of the directors.