Review of clauses on variable remuneration in the bylaws

The clauses in the articles of association regulating the variable remuneration of directors in companies must include ‘general reference indicators or parameters’ for the determination of such remuneration, stressing that ambiguity in these concepts may lead to their nullity, in accordance with the Directorate General for Legal Security and Public Faith (DGSJFP) in its resolution of 21 October 2024, published in the Official State Gazette on 21 November.

In the case analysed, a limited liability company included in its articles of association the possibility of establishing a variable remuneration for executive directors, based on general indicators. This clause, although unusual, gave the general shareholders’ meeting the power to determine annually the remuneration items included in the management contracts. However, the commercial registrar questioned the validity of this provision with regard to the lack of specificity of the variable remuneration parameters.

The DGSJFP confirmed the registrar’s negative qualification, considering that the reference indicators or parameters must be defined in the articles of association, although it admits a certain interpretative flexibility. The absence of specificity could compromise transparency and the informed consent of the shareholders, who must approve these parameters from the outset or by reinforced majorities in the event of amendment.

Key arguments include the principle of prior determination, which means that the articles of association should reflect remuneration items in such a way that shareholders understand their impact on the management of the company in both the short and long term.

In addition, attention should be paid to the insufficiency of generic formulas, so that expressions such as ‘target-based remuneration’ are considered indeterminate, particularly in closed companies that do not have specific remuneration policies.

Finally, it is suggested to include financial indicators (such as EBITDA, net turnover or cash flow) and non-financial indicators (performance evaluations, sustainability or diversity goals), which can be further specified in management contracts.