During the first COVID wave, companies were temporarily granted more flexibility by RD no. 4 to postpone their shareholders meeting or to hold it electronically. The measures to combat the coronavirus continue to complicate the organisation of physical meetings. That is why the legislator has now introduced a more structural legislative framework.
As from now, your company (BV/SRL, CV/SC, NV/SA) or association (VZW/ASBL or IVZW/AISBL) may hold its shareholders meeting remotely, without authorisation in the articles of association being required. The administrative body can decide to hold the shareholders meeting remotely through an electronic means of communication. This is merely a possible additional method for participation. Unlike under RD no. 4, the security holders or members cannot be required to participate in the shareholders meeting remotely or by proxy.
What do you need to consider when organising a remote shareholders meeting?
- The means of communication used should allow (i) verification of the capacity and identity of the participants, (ii) following and participation in the discussions in real time, and (iii) the exercising of voting rights. Hence, video or teleconference systems such as Zoom, Teams or Skype can be used, and under certain circumstances even a regular conference call is possible.
However, until 30 June 2021, the electronic means of communication is not yet required to enable security holders/members to participate in the discussions and to ask questions. In such case, the administrative body should state the reason for the lack of such a facility in the convocation notice . Nevertheless, the security holders/members must be able to participate directly in the vote at all times.
- The procedure for participating in the meeting remotely should be set out clearly and precisely in the convocation notice (and, as the case may be, on the company website).
- If any technical issues arise during the meeting, these must be described in the minutes.
- The members of the bureau must always participate physically in the shareholders meeting. Provided that they are not part of the bureau, security holders/members, directors, and the statutory auditor can participate remotely.
The possibility to vote remotely in advance of the shareholders meeting, which already existed in the NV/SA and the BV/SRL, has been extended to the VZW/ASBL and the IVZW/AISBL. This possibility requires a provision in the articles of association, however.
Finally, it is now also possible in the VZW/ASBL and the IVZW/AISBL, as in the NV/SA and BV/SRL, to hold a purely written shareholders meeting (subject to unanimity of all members) for all decisions, except for amendments to the articles of association.