Digital general meetings: a new era
June 2021 – In 2020, when the pandemic broke out, the then Minister of Justice took emergency measures allowing general meetings to be postponed and held remotely. At the end of December 2020, a more solid legal framework was created for these digital general meetings. The pandemic is no longer a valid reason for postponement.
More power for the board of directors
The main consequence of the amendment made at the end of December 2020 is that the board of directors can now decide on the organisation of the general meeting. Until 2020, the possibility to participate in the general meeting "remotely" had to be explicitly provided for in the articles of association. In 2021, this is no longer necessary. Even if the articles of association do not explicitly provide for it, a general meeting with remote participation (or a digital general meeting) can be organised.
The decision to organise such a meeting lies with the administrative body. The administrative body must first offer the shareholders the possibility to participate in the meeting remotely. If the meeting is actually held in this way, the participants are presumed to be present at the place where the general meeting is held.
It is important that the company can verify the identity of these participants. This way the board knows which competences the participants concerned have (e.g. multiple voting rights).
The electronic means of communication
The law also imposes several requirements on the means of communication.
The tool must obviously allow participants to follow the discussions. But they must also be able to participate actively in the deliberations and ask questions.
Companies have some time to meet these technical requirements. In order to allow companies to adapt, the general meeting may be held digitally until 30 June 2021, even if it does not meet these requirements. The board of directors must then justify in the notice of the general meeting why the company does not have such an electronic means of communication. However, this is not easy to prove with the tools currently offered by specialised companies.
The administrative body should describe the procedure to be followed in order to participate in the general meeting remotely when it convenes the shareholders. This should be done in a clear and precise manner. In other words: the board should avoid that shareholders are excluded simply because the tool is too complex.
Obviously, one or other problem is never excluded in such an online meeting. This must be recorded in the minutes.
What about the "bureau": physical presence required
The officers (in practice, the directors and employees responsible for ensuring that the meeting runs smoothly) are not allowed to participate in the general meeting electronically. They must take the minutes and the legislator considers that this requires actual physical presence.
The administrative body itself and, if applicable, the auditor are allowed to participate remotely.
A written meeting is also possible
Another possibility to avoid physical meetings is the written general meeting.
This is not to be confused with the digital general meeting, because in a "written general meeting" no discussion/concertation is possible. The written meeting is actually reserved for the unanimous acceptance of the minutes of the general meeting.
The written meeting was already possible for SRL/BVs, SC/CCs and SA/NVs. What is new is that it is now also possible for NPOs.
A new era
The digital general meeting is undoubtedly one of the areas in which the pandemic has given a boost to a previously rather slow digital evolution. Overnight, a legal framework was created to allow general meetings to be held digitally, without too much formality for smaller companies. This digitalisation will undoubtedly also result in shareholders participating more quickly and actively in meetings. 2021 will be a test year in this respect.
