During the corona crisis, in which physical contact must be limited as much as possible, holding general meetings in the year 2020 is no longer an obvious choice.
In the context of the fight against the coronavirus, a number of temporary measures, as well as definitive measures, were cast in a bill to meet the aforementioned problems, at the initiative of the Justice Cabinet.
As far as general meetings in the context of corporate life are concerned, the decision seems to have been taken. The articles on this subject have already been approved at first reading. As far as the association of co-owners is concerned, things remain quiet for the time being.
Companies
The provisions of the bill concerning the organization of a remote general meeting have already been approved by the Chamber at first reading. In view of the urgency of this matter, it is expected that not much will change in the regulations themselves, so that the organization of the remote general meeting will soon become a reality.
According to the articles adopted, a general meeting will thus be held remotely can be organized, without this being expressly provided for in the bylaws. The choice to do so is entrusted to the governing body.
The call letter should communicate very clearly how to properly participate remotely in the meeting.
Two minimum conditions for electronic participation be imposed:
- For example, the means of communication used must allow the company to verify the capacity and identity of the shareholder using it.
- Also, the means of communication must enable the shareholder "at least to take direct, simultaneous and uninterrupted notice of the discussions at the meeting and to exercise the right to vote with respect to all the items on which the meeting is required to take a decision."
These requirements should no longer be elaborated in the bylaws.
Remote participation does not have to be through a sophisticated electronic communication tool with access control. The verification of the capacity and identity of the shareholder can also be done, for example, via video or telephone conferences such as Teams, Zoom, Skype or a similar system.
Strangely enough, the principle remains that members of the bureau, the management body or the statutory auditor cannot participate in the general meeting electronically. The solution is to provide the necessary renunciation documents or to submit written questions to the directors or the statutory auditor in advance.
Co-owners association
Holding an annual general meeting in an apartment building is essential. At these meetings, decisions are made about works on the building, the annual budget is approved, and decisions are made about the trustee's mandate.
During the first corona wave, temporary measures were already taken to allow general meetings in apartments, which could no longer physically take place, to be postponed to a later date. Specifically, these were to take place no later than the end of November, which ultimately proved to be no solution given the current measures still in place.
Hence the call by many unionists for a legal framework within which the general meeting could still take place coronaproof.
As a principle, the bill provides that meetings shall be held as much as possible digital must be held. The notice of the meeting must provide for this. Only if the meeting cannot take place in this way can one benefit from a postponement arrangement.
General Assemblies that take place in the period from October 1, 2020 to March 9, 2021 will be postponed by one year, i.e. to the next 15-day period provided for in the Internal Regulations. This also applies to the general meetings that were postponed in the first corona wave as a result of the temporary relaxation.
However, if one fifth of the owners wish the general meeting to go ahead or if an urgent decision must be taken, it must be taken physically. If this is not possible, one can make use of the temporary relaxation of the unanimity requirement for taking decisions in writing. Until March 9, 2021, a four-fifths majority is sufficient and unanimity is no longer required in order to avoid the risk of not being able to deliberate validly.
The mandates of syndicates or members of the board of co-ownership are renewed until the next general meeting.
These rules would take effect retroactively on October 1, 2020, for general meetings that could no longer be held due to force majeure. Of course, general meetings held since October 1, 2020 would retain their legal validity.
Since the bill on holding general meetings in apartment buildings has not yet been approved, and physical meetings are not permitted, written decision-making seems to be the only option at present. Such written decision-making is then subject to the unanimity requirement. The possibility of working through proxies still does not offer a solution given the current circumstances.
We will keep you informed of further developments. Do you have any questions about the support measures or would you like to discuss any changes that the crisis may bring to your company? Do not hesitate to contact us. You can reach us at any time on 051 26 82 68 or by e-mail at info@titeca.be.
