The digital general meeting of your company
March 2021 – At the end of March 2020, at the beginning of the coronavirus crisis, the government had proposed a temporary solution for company general meetings. On the one hand, they were generally postponed and on the other hand, they could be held digitally. At the end of 2020, the legislator drew up a more definitive solution.
The remote general meeting
A General Assembly (GA) could already take place "at a distance", but the statutes had to allow for this. A law of 20 December 2020 removed this obstacle: the decision to organise a physical or digital AGM lies entirely with the administrative body.
In the invitation to the general meeting, the administrative body must give "a clear and precise description of the procedures for remote participation". The aim is of course to avoid that shareholders cannot participate in the meeting due to technical requirements.
The new rules apply to all forms of companies (SRL, SA, SC), as well as to ASBLs and AISBLs.
Nothing changes for listed companies, as well as for companies incorporated before 1 May 2019 that have not (yet) adapted their articles of association. In these companies, a general meeting can therefore only be held remotely if the articles of association so provide.
Which digital tool?
To be valid, the tool used for the remote general meeting must meet only two conditions.
Firstly, the tool must enable the company to check the identity (and quality) of the shareholder. It is sufficient for the company to be able to verify whether the person presenting himself is indeed who he claims to be and whether he has the capacity of shareholder. This does not require the installation of a sophisticated electronic means of communication. If the number of shareholders is limited, this can even be done by simple conference call. The verification of the quality and identity of the shareholder can also be done very simply by means of communication tools such as Teams, Zoom and Skype.
Secondly, the tool used must enable the shareholder to "directly, simultaneously and continuously be aware of the discussions within the meeting". The shareholder must therefore be able to attend the meeting, but also to participate actively, ask questions and exercise his or her right to vote. The tool must therefore allow real-time communication in both directions.
As the implementation of this tool may be difficult to achieve in the short term for some companies, a transitional regime has been provided for until 30 June 2021. The company may thus decide to limit communication at the general meeting to an "issue" (i.e. communication in one direction only).
However, this decision must be clearly announced and motivated, and a shareholder who nevertheless wishes to actively participate must be given the opportunity to attend a physical meeting.
Still a little physical
Even if it takes place at a distance, any general meeting always has a physical aspect.
The members of the board must always participate physically in the meeting. Similarly, if at the meeting a decision has to be recorded in an authentic instrument (e.g. a contribution), the persons concerned must also be physically present.
