The Sezioni Unite (plenary session) of the Supreme Court has recently affirmed, in the decision No. 1545/2017, dated January 20, 2017, that director's remuneration may be attached in full and not by 20% as established by Law with respect to salary of employment relationships.
In the background of the decision the nature of relationship between company and directors.
Is that an employment relationship or not? That was the issue put on the table.
The ruling puts an end to a very heated debate in jurisprudence on the nature of the relationship between the director and the company.
According to the Law, in fact, the salary or any sum paid by way of salary "may be attached to the extent of 20% for taxes due to the State [...], and in an equal percentage for any other credit".
Such limit operates also for the remuneration/fees due to an agent in an agency relationship, or commercial representation and/or other parasubordinate employment relationships. On the contrary, it does not operate with reference to the fees due for contracts of self-employment or professional work.
The Supreme Court have noted that no coordination (required for any para-subordinate employment relationship) exists between the company (the alleged employer) and the director (the alleged employee).
Furthermore it has been pointed out that directors enjoy "a dominant position on the company", as the managers of the same and legal representative.
Therefore the sole director or a board member, in the light of the organic identification with company and the absence of the coordination, cannot be considered as a para-subordinate employee. Which means that any amount due to the same by the company as remuneration may be attached by his creditors like any other common credit without any limitation.
