The Royal Decree n°4 that was published today (9 April 2020) intends to offer greater flexibility to companies in organising such meetings, in addition to the existing option of holding some of these meetings in writing.
The measures provided in this Royal Decree can be used by any company even if their articles of association do not provide for remote voting systems.
The measures will last until 3 May 2020, unless extended and apply to (i) any meeting of the board and general assembly to be held or which should have been held , and to (ii) any convocation, which has been sent or published or which should have been sent or published, as from 1 March 2020. The measures can still be used for meetings which have been convened before 3 May 2020 but will effectively be held after this date.
1. General assemblies
Boards have the choice of either holding their general assemblies using remote voting systems or postponing them.
1.1 The board decides to hold the general assembly
Even if not provided in the company’s articles of association, the board may oblige the general assembly’s participants to exclusively exercise their voting rights, prior to the general meeting, as follows:
- By remote vote, either by correspondence using an application form made available by the board or through a website; and/or
- By giving a power of attorney to either the company or to a sole designated representative appointed by the board (in compliance with, if applicable, the conflict of interest rules). However, if the shareholder provides a proxy with specific voting instructions but designating another proxy-holder, such a vote will have to be taken into account without the proxy-holder having to attend the meeting.
The documents used to vote must be communicated at the latest by the fourth day preceding the date of the general assembly. Such communication can be made by all means, including via an email containing a scanned or pictured copy of the documents.
The Royal Decree provides that if the board decides to use the remote voting options described above, then it may prohibit any physical presence by shareholders or any other person allowed to participate in such a meeting. The board may also require that only written questions are submitted, at the latest on the fourth day prior to the general meeting. Answers to those questions will be given either by a written response on the day of the assembly at the latest or orally during the assembly if a live or differed (audio or video) streaming is made available to the persons authorised to participate in such an assembly. For listed companies, the answers must be posted on the company’s website.
For the other persons authorised to participate in the general assembly, i.e. directors, statutory auditor or proxy-holders, they can validly participate via video- or conference call.
For extra-ordinary general meetings whose decisions must be acknowledged by an authentic deed, the Royal Decree provides that it is sufficient to have only one person physically meeting the public notary. Depending on the voting procedure chosen by the board, it will be either a member of the board or the proxy-holder appointed by the board. If a shareholder appoints another proxy-holder, then such a proxy-holder is not obliged to participate in such a physical meeting.
If a company has already sent or published the convocation prior the entry in force of the Royal Decree, it can modify it to use the Royal Decree measures or modify the general assembly’s venue. The communication of such modification can be made by all means, except for listed companies. In the latter’s case, such modification must be made via a press release and a publication on their website at the latest on the sixth day prior to the general meeting. The convocation and the documents that must be communicated to the shareholders do not have to be sent by mail.
1.2 The board decides to postpone the general assembly
The board may decide to postpone the general assembly to a later date, even if the meeting has already been convened. Such a decision can be communicated by all means to the shareholders, except in listed companies. In this case, the postponement must be announced by press release and posted on the company’s website no later than the fourth day before the general meeting.
The postponed meeting will be considered as a new meeting for the application of the Code on Companies and Associations, and in particular the rules relating to convening, powers of attorney, remote voting, and other modalities.
The decision to postpone the annual general assembly has consequences for the period within which the annual accounts must be approved by the general assembly and filed with the National Bank of Belgium. These periods will be extended by 10 weeks.
Any general assembly that has been convened prior to the entry into force of the Royal Decree can be postponed, except those that have been convened because the company’s net assets are or threaten to become negative. The same exception applies when the statutory auditor or the shareholders are required to convene a general assembly in accordance with the provisions of the Code on Companies and Associations. However, in this case, the board can still decide to hold such a general meeting using the flexible measures set out above.
2. Board meetings
Any decision by any collegial board of a company can be taken by unanimity either in writing or by all means provided by Article 2281 of the Civil Code. Meetings can be held by all means as long as they allow a collective deliberation. For the meetings requiring the presence of a public notary, for example for a capital increase by authorised capital, a sole representative of the board, who has been duly authorised, will be sufficient.
The above information is merely intended as comment on relevant issues of Belgian law and is not intended as legal advice. Before taking action or relying on the comments and the information given, please seek specific advice on the matters that are of concern to you.