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How can I organize the general meeting in times of social distancing?

Thursday 30/04/2020
Algemene vergadering met social distancing

What options do I have as a company when organising a physical general meeting is not possible?

The general meeting can be postponed 

The general meeting may, on its own initiative or at the request of the management body, decide, for example, to postpone the approval of the annual accounts until a date to be determined. A prior decision of the general meeting to postpone is therefore still required. The general meeting is free to determine the period within which the new general meeting must be held. 

Attention: in this case, the annual accounts must still be submitted for approval to the general meeting within six months of the closing date of the financial year and must be filed at the latest by the end of the seventh month following the date following the closing of the financial year. 

The general meeting can be held in writing 

As far as BVs, CVs and NVs are concerned, the WVV stipulates that the shareholders can take all decisions in writing that fall within the competence of the general meeting, with the exception of those that must be drawn up by authentic deed. The compulsory convening formalities do not have to be complied with in this case, as no physical meeting is held. The minutes (which already contain a proposed resolution) are sent to the shareholders together with the necessary background information.  Written decision-making is only possible if the articles of association do not explicitly exclude this. Moreover, all shareholders must agree to the procedure and then unanimously approve the present transaction.  

Both the annual and other general meetings can be held in written form as long as the intervention of a civil-law notary is not required. 

Since the law requires all shareholders to agree to the decision of the written general meeting, in practice a written document with the signature of all shareholders or, where appropriate, the proxies, will be required. This signature can be given in electronic form. In that case, however, it is advisable to make use of the so-called "qualified electronic signature" which is equivalent to the handwritten signature. Think, for example, of a signature placed with an electronic identity card or the itsme app. 

For many companies with only a limited number of shareholders who are often on the same wavelength, this written procedure will become the method of meeting par excellence.  

Moreover, written decision-making can also be applied by the management body, provided that the articles of association do not exclude this (whether or not for certain decisions). Of course, the decisions must also be taken unanimously in this case.  

Representation by proxy 

The general meeting of the BV, the limited partnership and the NV may also be attended remotely by means of a means of communication made available by the company, such as Skype, Zoom, Teams...  

However, the members of the bureau, the chairman, the directors and/or the statutory auditor must in principle always meet in person. The electronic meeting is therefore not a solution for everyone. 

What additional possibilities do I have as a company during the Covid-19 pandemic?   

On 9 April 2020, proxy KM no. 4 was published in the Belgian Official Gazette. This Royal Decree no. 4 came into force the same day and aims to make the organisation of meetings during this Covid-19 pandemic smoother. After all, it was felt that the possibilities mentioned above were not sufficient.  

Does this Royal Decree apply automatically?  

No, it doesn't. It is an optional arrangement which gives companies the free choice to invoke it. It is therefore important to clearly indicate in the notice of the meeting and in the minutes of the meeting that this Royal Decree is applied.  

However, anyone who chooses to make use of this Royal Decree must follow the rules strictly.  

Who can make use of this optional arrangement?  

Any company, association or legal person that has a general meeting and/or an administrative body can make use of the optional regulation of this RD. This not only applies to legal persons governed by public law or legal persons with their own statute, but also to all companies and associations falling within the scope of the Companies and Associations Code (e.g. partnership, VOF, COMMV, BV, CV, NV, VZW,...).   

At which meetings can this be applied?  

This RD applies to the ordinary, special and extraordinary general meetings of shareholders or members as well as to the meetings of the management body, which:   

  • Moe(s) to be held between 9 April 2020 and 30 June 2020; 
  • Moe(s) to be held between 1 March 2020 and 30 June 2020 but have been postponed for the time being because, for example, they did not know how to organise them safely;  
  • were convened in the period between 1 March 2020 and 30 June 2020, regardless of when the meeting will actually be held. This improves legal certainty.   

The optional arrangement is therefore provisionally limited in time (provisionally until 30 June 2020) but may be extended if it appears that the COVID-19 pandemic still does not allow the normal application of the meeting rules after that date.  

What does this optional arrangement look like for the general meeting?  

The RD elaborates on two options, i.e. (i) holding a general meeting or (ii) postponing the general meeting. After all, companies want to be left with this choice.  

Holding the general meeting 

Here, an attempt is made to strike a balance between the measures to be complied with as a result of the COVID-19 pandemic on the one hand (e.g. social distancing) and the safeguarding of the rights of shareholders and members on the other hand (e.g. voting and questioning rights).  

First of all, it is recognised that general meetings can be held by telephone or videoconference (e.g. via Skype, Zoom, Teams,...), whether or not supplemented by e-mail to circulate documents. A general meeting can therefore be validly organised via these modern means of communication, provided that the shareholders or partners are validly invited to take part in the meeting, can sufficiently identify each other, can debate with each other and can cast their votes.   

Exceptionally, members of the bureau, the chairman, the directors and/or the auditor can also make use of this possibility to hold digital meetings.   

However, due to the problem of proof, we recommend that the meetings be recorded so that they can be reconsidered at a later date.  

However, for companies with a large number of shareholders or members, it is difficult to organise a general meeting by telephone or videoconference. In addition, it is also perfectly conceivable that certain companies will feel uncomfortable at a digital meeting. 

For this reason, written procedure was also provided for, i.e. the possibility of remote voting, whether or not by proxy. On the basis of this Royal Decree and therefore without a statutory authorisation, the management body can decide that shareholders or members must cast their votes in writing before the general meeting actually takes place. NVs follow the procedure prescribed by law. Other companies apply these regulations by analogy if their articles of association do not contain their own procedure.   

If a proxy is given, this proxy must contain the voting instructions of the person giving the proxy. The management body can even appoint one proxy holder on its own initiative, who can act on behalf of all shareholders or members during the general meeting. After all, the appointment of one proxy holder makes it possible to organise the general meeting in a very limited circle, with respect for the rules of social distancing.   

(!) Normally, this voting instruction is not compulsory and the proxy holder can decide to whom he or she gives a proxy (see above). This "more flexible arrangement" is therefore a lot stricter than usual in this respect. 

In the case of remote voting, with or without a proxy, the shareholders or members therefore cast their votes (instructions) in writing in advance by means of a voting form and/or proxy (the models of which are made available by the management body). 

The possibility for the shareholders or members to put questions to the management body remains. The questions must be put in writing and submitted to the administrative body prior to the meeting. The governance body can decide to answer the questions in writing (e.g. by e-mail) but can also choose to answer the questions orally when the shareholders or the members are given the possibility to follow the general meeting from a virtual distance (e.g. via webcam). In any event, the questions must be answered before the vote takes place.  

(!) In this way, an attempt is made to safeguard the shareholders' or members' right to ask questions. However, this method of working can be seriously questioned as shareholders and members have to cast their votes before they have received an answer to their question. 

Contrary to the procedure of written deliberation provided for by the WVV (see above), decisions in the case of a remote and/or proxy vote do not have to be taken unanimously.  

The general meeting of the BV, the limited partnership and the NV may also be attended remotely by means of a means of communication made available by the company, such as Skype, Zoom, Teams...  

However, the members of the bureau, the chairman, the directors and/or the statutory auditor must in principle always meet in person. The electronic meeting is therefore not a solution for everyone. 

Postponement of the general meeting 

This RD also allows the administrative body to postpone the general meeting until the situation has returned to normal.  

Such a postponement is even possible for meetings that have already been convened but have not yet been held effectively, provided that the shareholders or members are informed in good time and correctly of the wish to postpone the meeting on the basis of this RD (e.g. by e-mail, by notification on the website or by post).  

However, the postponed meeting is considered to be a new meeting, which means that a new convocation will in any case have to be issued (with due observance of the convocation period). 

In order to make this postponement possible without any sanctions being imposed, the RD explicitly provides for the granting of a number of legal deadlines. For example, the deadlines for the approval and filing of annual accounts will be extended by ten (10) weeks. 

For example: The financial year closes on 31 December 2019. The annual accounts must be approved by 30 June 2020 at the latest and filed by 31 July 2020. If it is decided to postpone the annual general meeting of 1 May (date mentioned in the articles of association), one has until 8 September 2020 to organise a new meeting (30 June + 10 weeks).  

The meeting can therefore not be postponed indefinitely (and with impunity). 

 Moreover, the possibility of postponement does not apply to all types of meetings. Thus, no postponement can be granted for general meetings that have to be convened because of the alarm bell procedure, general meetings that have been convened at the request of the auditor and general meetings that have been convened at the request of the shareholders or members. Obviously, these meetings can be organised according to the possibilities described in (i).  

What about the meetings of the management body? 

Finally, this Royal Decree expressly confirms that the collegial management body can temporarily, under all circumstances and regardless of what the articles of association stipulate, take a unanimous decision in writing. 

If it so wishes, the collegiate body can also validly meet by telephone or videoconference (e.g. via Skype, Zoom, Teams, etc.), even if this is prohibited by the articles of association. 

If you have other questions regarding the Corona crisis, please visit our special FAQ

Last update: 25/06/2020

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Bert Lutin
Bert Lutin
Partner Tax & Legal Services