On February 26, 2018 the Civil Section of the Spanish Supreme Court in its resolution number 98 of the current year, has modified the majority criterion that the Spanish corporate doctrine had been maintaining so far, regarding the remuneration of directors and the interpretation given to Articles 217 and 249 of the Ley de Sociedades de Capital (“Corporate Enterprises Act”).
At the beginning and since the amendment of the mentioned law, at the end of 2014, the common principle of the doctrine was sustained over the existence of two different kinds of remuneration:
(i) «Directors in such condition», which was governed by the Bylaws provisions and the resolutions of the General Meeting of Shareholders that had to agree the maximum amount of the annual remuneration for all the directors of the company.
(ii) «Executive Directors», which was regulated by the formal agreement to be signed between the executive director and the company, which was to be approved by the Board of directors.
What the Supreme Court Resolution says is that the provisions established in article 217 of the Corporate Enterprises Act also applies to the Executive Directors retribution regime, without the afore mentioned distinction between both categories of directors. This means that the remuneration of the Company’s directors , including Executive Directors, and the remuneration system shall be reflected in the Companies’ Bylaws.
In conclusion, we must keep in mind that the Bylaws will establish the remuneration or not for the position as director (including the Executive Directors) and, if where applicable, the remuneration system. In the event that the Bylaws provide the remuneration of the directors, the General Meeting of Shareholders shall approve the maximum amount of remuneration and, as last step, will be up to the Board of Directors , – unless the General Meeting of Shareholders determines otherwise -, to distribute the remuneration among them
Net Craman Abogados is an expert law firm with a long expertise in corporate counselling sing , and the adaptation of any corporate issue to the new criteria.