The Say on pay: the ambivalence of the control of the remuneration of the agents of listed companies

By Pierre Mudet, partner and Fabienne Kerebel, counsel

The Say on pay: the ambivalence of the control of the remuneration of the agents of listed companies

In a few years, the say we pay - heard as the shareholder voting system on the compensation of corporate officers, both for the current financial year (vote ex-ante) than for the past financial year (vote ex post) - has established itself as the metronome for the compensation of corporate officers of listed companies, for which it has profoundly remodeled the legal regime.

The French legislator established and modeled un say on pay “French style”, the requirements of which go beyond European requirements and make it one of the most rigorous mechanisms for regulating the remuneration of corporate officers in the European Union.

The mechanism, adopted in 2016 and overhauled in 2019, has operated a real disruption of the legal regime for executive compensation of listed companies and, in hollow, governance rules, with a transfer – albeit partial – of the original competence of the board to the shareholders in terms of remuneration. the say we pay participates in this respect in an overall dynamic of accountability of the major private actors, where the alignment of interests, transparency, measurement and competitiveness, including on the aspect of remuneration, are among the paradigms of a good governance.

This movement contributed to the haste, effervescence and legislative rigor that marked the say we pay. The current regime is that resulting from Ordinance No. 2019-1234 of November 27, 2019 and its Decree No. 2019-1235 of the same day, taken pursuant to the Pacte law in the context of the transposition of the directive "Droit des shareholders II”, the main objective of which was to set up a unified and coherent framework governing the determination and payment of the remuneration of the officers of listed companies under the control of the shareholders. The remuneration policy, around which this control, ex-ante (on the policy itself) as ex post (on the result of this policy), is exercised, constitutes the figurehead of the system.

The regime thus put in place is complex. and does not avoid the difficulties of interpretation and application, contrary to the objective of consistency set by the legislator. If the efforts of the soft law, practice and issuers contribute to alleviating if not erasing some of these difficulties, the remuneration system for corporate officers still suffers, in certain respects, from a relative legal uncertainty.

While the legislation is stabilized, while the practice has appropriated the device of the say we pay and that reflections are being carried out on a possible evolution of the latter, the time has come to take stock. Like a say we pay plural, this dossier intends to carry out a plural analysis of the difficulties, legal as well as practical and even political, posed by the system of the say we pay, its application and its apprehension, this as well for its recto face (control ex-ante, on the remuneration policy) and for its reverse side (control ex post, on the implementation of the remuneration policy). 

In this folder you will find the following items:

• The say on pay
• The front side of say on pay: ex-ante control of the remuneration policy
• The reverse side of say on pay: ex-post control of the implementation of the remuneration policy