In its judgment No. 2487 of Jan. 27, 2022, the Supreme Court of Cassation returned to pronounce on the possible coexistence of a subordinate employment relationship and a management relationship between a corporation and a person (at the same time, employee and director).
Indeed, the issue has been addressed not only by the jurisprudence of legitimacy, but also in administrative circles, in particular by the I.N.P.S, with interpretative approaches sometimes divergent from each other.
In fact, the Social Security Institute, in a long-standing Circular No. 179 of 08.08.1989, had, initially, denied the compatibility between the above-mentioned positions, only to arrive, in line with some favorable pronouncements of the Supreme Court, at more open hermeneutical results (message No. 12441 of 08.06.2011).
Returning to the S.C.’s aforementioned recent ruling, it overturned the contested decision of the Florence Court of Appeals, which had ruled out a priori the possibility of two partners and members of a company’s board of directors establishing an employment relationship with the company.
The court of legitimacy, in denying this assumption, preliminarily reiterated that, as a matter of law, the incompatibility of subordinate status operates absolutely only with reference to the position of sole director of the employer company; in such a case, the impossibility for the worker/administrator to be subject to others’ managerial, supervisory and disciplinary powers prevents the indefectible requirement of subordination from existing.
Making a synthesis of the various principles already established by earlier case law, the Supreme Court has affirmed that the cumulability of the office of director with the activity of an employee can be said to be legitimate when “the assignment of duties other than those proper to the corporate office and the bond of subordination, i.e. the subjection, despite the corporate office, to the managerial, supervisory and disciplinary power of the company’s administrative body; and this circumstance occurs, if the formation of a distinct entrepreneurial will can be identified, such as to determine the subjection of the employee-director to an external disciplinary and managerial power, so that the title of director constitutes a ‘screen’ to cover an activity constituting, in reality, normal subordinate work: thus resulting in evidence of subjection to the managerial and disciplinary power of other organs of the company and the absence of autonomous decision-making powers“. (EP, GB)
