In judgement no. 18549, published on June 30, 2023, the Supreme Court returns to rule on the scope of application of the 10 percent surcharge on bonuses and stock options, granted to executives and directors as well as those who are the holders of coordinated and continuous collaborative relationships with companies operating in the financial sector provided for in Art. 33 of d.L. no. 78/2010.
In particular, in continuity with pronouncement no. 16875 of June 13 u.s., for the purpose of defining the subjective scope of the aforementioned rule, the Supreme Court reiterated that an expansive interpretation of the concept of “financial sector”-to be understood as “socio-economic general clause” – should be considered in line with the rationale of the rule and, therefore, that “the potential capacity to produce, if pushed by a consequent higher variable remineration, potentially distortive economic effects does not seem exclusively pertaining to banks and financial intermediaries executives”.
That clarified, calibrating the above principles to the case at hand, it was pointed out that they fall under the concept of “financial sector” in Art. 33, d.l. 78/2010 also the remuneration recognized to consultants who are holders of labor relations similar to employee relations with companies performing “𝘴𝘦𝘦𝘳𝘷𝘪𝘻𝘪 𝘥𝘪 𝘤𝘰𝘯𝘴𝘶𝘭𝘦𝘯𝘻𝘢 𝘦 𝘢𝘴𝘴𝘪𝘴𝘵𝘦𝘯𝘻𝘢 𝘪𝘯 𝘮𝘢𝘵𝘦𝘳𝘪𝘢 𝘴𝘰𝘤𝘪𝘦𝘵𝘢𝘳𝘪𝘢 𝘦 𝘧𝘪𝘯𝘢𝘯𝘻𝘪𝘢𝘳𝘪𝘢 𝘥𝘦𝘭𝘭𝘭𝘦 𝘢𝘻𝘪𝘦𝘯𝘥𝘦” as:
(a) Excluding the relevance of formal qualifications of “financial subjects,” the recognition of variable remuneration in the context of financial advisory activities must be considered capable of generating the distorting economic effects that Art. 33, d.l. 78/2010 aims to prevent;
(b) it cannot recognize a neutral position of the financial advisor and thus consider that the distorting economic effects to be prevented could only be generated by those who implement the advice itself since, on the one hand, Art. 33, d.l. 78/2010 fulfills a clear function of deterrence and prevention of danger and, on the other hand, it cannot be denied-at least a priori-that there is a connection between the consulting activity and the reason for which it was requested.