Jeroen Bouwsma
05 May 2020
Given that the organization of physical meetings has become a challenge as a result of the current security measures taken by the National Security Council to combat the Covid-19 pandemic, some measures have been taken by the Minister of Justice to address this issue. The Proxy Decree of April 9, 2020 (Royal Decree No 4 of April 9, 2020 containing various provisions on co-ownership and company and association law in the context of the fight against the Covid-19 pandemic) temporarily introduces a number of flexibilities and options with the intention of giving legal persons the necessary flexibility while respecting the rights of shareholders. In the Royal Decree of April 28, 2020, it was decided to extend the time limits of the measures from May 3, 2020 to June 30, 2020.
The measures will apply for the period starting on March 1, 2020 and ending on June 30, 2020. However, this period may again be extended if it appears that after this date it would still not possible to hold meetings in a 'normal' manner.
For meetings for which a convocation has already been sent, the rules set out below will also apply.
The measures thus apply to the following situations:
The rules apply to all companies and associations, including legal persons created by special laws.
In the first place, one can choose to allow the meeting to be held, but in circumstances that are, on the one hand, compatible with the measures taken as a result of the COVID-19 crisis and, on the other hand, allow shareholders and members to exercise their voting rights and give them the opportunity to ask questions.
Prior to the general meeting, the administrative body may oblige the participants to:
It is important that both options should always be offered. The administrative body is not allowed to choose which option it offers.
The administrative body may stipulate that the voting forms and/or proxies must be received no later than the fourth day preceding the day of the general meeting. A scan of the signed voting form and/or signed power of attorney will suffice.
It is also permitted to make an electronic means of communication available to the participants of each general meeting, even if this has not yet been included in the articles of association of the legal person. This electronic means of communication must enable security holders to participate directly, simultaneously and continuously in the discussions at the meeting and, as far as shareholders are concerned, to exercise their voting rights on all matters on which the meeting is called to decide. Meetings with a limited number of shareholders, where everyone knows and can identify each other, can be held, for example, via video or telephone conferences.
It is also possible to require that questions should be asked in writing no later than the 4th day before the general meeting. The answers can then be given:
Listed companies, who choose to answer the questions in writing, should publish the answers to the questions on their website. In addition, listed companies are exempt from any obligation to communicate the convocation and the other documents they must make available to their shareholders and other persons entitled to receive them by ordinary mail or to keep them available at the company's registered office.
In addition, the administrative body may also decide to postpone the general meeting, even if the meeting has already been convened, provided that the shareholders and members are correctly informed.
If the administrative body chooses to postpone the general meeting, this postponement automatically leads to a postponement of 10 weeks for certain deadlines stipulated in the Code of Companies and Associations.
The following deadlines are included:
In particular, in the event of a postponement of the general meeting of legal entities with a financial year ending on 31/12/2019, which should normally hold their general meeting no later than 30/6/2020, these legal entities must hold their postponed general meeting no later than September 8, 2020 and file their annual accounts no later than October 8, 2020 (instead of no later than July 31, 2020).
Please note that not all general meetings can be postponed and the option for the administrative body to postpone the general meeting does not apply for:
Finally, it is also possible that in all circumstances the administrative body can decide unanimously in writing (i.e. even if the articles of association of the company exclude or limit this possibility). The administrative body may also deliberate and decide (if necessary by a majority) by means of an electronic communication that allows for discussion.