The COVID-19 mandatory safety measures create a lot of difficulties for holding the annual (and all other) shareholders’ or members’ meetings and meetings of the board of directors (whether related to the annual shareholders’ or members’ meeting or not). In order to overcome these difficulties, a special Royal Decree was adopted on 9 April 2020 by the Belgian government to provide companies and associations with the necessary flexibility. The Royal Decree foresees two possibilities: (A) holding meetings without physical participation (or only in the presence of one person) and (B) postponing the meeting.
A. Holding meetings without physical participation
- Shareholders’ or members’ meetings
The board of directors is entitled to prohibit physical participation. The board of directors may then impose on the shareholders or members either to vote prior to the meeting or to participate by proxy.
A) Vote prior to the meeting
Votes can be cast in advance via the website or via forms provided by the company/association. Besides the agenda of the meeting, the voting form also has to contain the proposed resolutions.
B) Voting by proxy
The board may appoint one person to whom all shareholders/members must grant the proxy. The proxy will only be valid if it contains specific voting instructions. If a proxy has already been received in which a shareholder or a member had appointed a different proxy holder, the votes or abstentions will still be taken into account if the proxy contains specific voting instructions, and without this other proxy holder having to be present at the meeting.
C) By telephone or video conference
The appointed proxy holder, the members of the bureau (if any), the directors and the statutory auditor may validly participate remotely, e.g. by telephone or video conference (i.e. their physical presence is no longer required). For resolutions requiring the intervention of a notary, it suffices that the proxy holder, or if the board did not make use of the proxy procedure, one board member or representative, is physically present and signs the deed before the notary.
Regarding the shareholders’ (or members’) right to ask questions, the board may require that only written questions are submitted. These questions will be answered in writing and at the latest prior to the vote. The shareholders or members must be informed of the answers in the most efficient manner. If the meeting is live (i.e. video or audio conference), the questions may be answered orally during the meeting.
- Board meetings
The rules for meetings of the board of directors have also been made more flexible.
A) Board meeting via telephone or video confence
It is foreseen in the Royal Decree that the board of directors may validly deliberate by telephone or video conference, even if this is not provided for in the articles of association.
B) Written resolution
The board of directors may adopt (unanimous) decisions in writing, even if this is not allowed under the articles of association.
B. Postponing the annual shareholders’ or members’ meetings
The annual shareholders’ or members’ meeting may be postponed for up to 10 weeks after the statutory deadline. For companies or associations that closed their financial year on 31 December 2019, this means that the annual meeting can be postponed until 8 September 2020. In this case, the approved annual accounts must be filed with the National Bank of Belgium no later than 8 October 2020.
C. Time period during which the new rules apply
Aforesaid measures apply from 1 March 2020 until 3 May 2020. The companies and associations that are required or were required to convene a meeting during this period may make use of them, irrespective of whether the actual meeting takes place thereafter. If convocations have already been sent (as of 1 March 2020), but the meetings have not yet taken place, companies and associations may still switch to the new rules.
If circumstances are such that meetings can still not be held normally by 3 May 2020, the time period can be extended.
The new rules do not replace existing rules. Those continue to apply.
D. Exceptions
Aforesaid rules apply to all types of shareholders’ meetings, whether ordinary, special or extraordinary.
Two exceptions:
- The shareholders’ meeting convened within the framework of the alarmbell procedure (loss of net assets);
- Request of minority shareholders (10%) to convene shareholders’ meeting.