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Amendments to Belgian corporate law to facilitate remote shareholders’ meetings

Since the outbreak of the COVID-19 pandemic, the provisions of the Companies and Associations Code (the “CAC”) on the functioning of corporate bodies have proved to be too restrictive, particularly with regard to the remote organisation of shareholders’ meetings for listed companies or companies having many shareholders.

remote shareholders meetings - loi 20 décembre 2020 - belgium

Facilitating remote shareholders’ meetings

Following the Royal Decree No. 4 of 9 April 2020 (as extended by the Royal Decree of 28 April 2020) which has expired, the Law of 20 December 2020 [1] has been adopted notably to facilitate the remote shareholders’ meetings of companies and (international) non-profit associations (A(I)SBL/(I)VZW) on a long-term basis.

In its current version, the CAC required a specific authorisation in the articles of association to organise a shareholders’ meeting using electronic means of communication. This requirement disappears with the newly adopted measures (for the SA/NV, see the new text of article 7:137 of the CAC).

For all companies (listed or not) and associations (“ASBL”/”VZW”), the option to hold a remote shareholders’ meeting is now at the discretion of the management body. However, the meeting will always need to be held at the same time in a “presential” form. Consequently, unlike what was provided for in the Royal Decree no. 4, directors may not refuse the physical presence of shareholders at the meeting.

Members of the bureau are required to participate in person. The directors and, where applicable, the statutory auditor can attend remotely provided they are able to answer the shareholders’ questions with the used communication means.

Conditions to organise remote shareholders’ meetings

Several conditions have to be met by companies and associations wishing to organise a remote shareholders’ meeting:

Our analysis

The Covid-19 outbreak has proved the importance to dispose of legal and technical resources to organise remote participation and voting to shareholders’ meetings. In addition, remote participation may encourage certain shareholders to participate in shareholders’ meetings. From this perspective, the adaptations made to the CAC are welcome.

However, contrarily to the measures taken during the first lockdown, the legislator did not leave a certain margin of appreciation to allow the management body to prohibit shareholders’ physical presence. Thus, shareholders’ meetings will, at most, remain hybrid meetings. This may be problematic if the social distancing measures are extended for several months, especially as the period for organising the shareholders’ meetings, notably for listed companies, is coming. One way to limit the number of shareholders present in person may be to encourage the granting of proxies to a single person suggested in the convening notices.

In addition to the amendments concerning remote meetings, the newly adopted measures extend to the members of an ASBL/VZW the possibility to (i) take unanimously and in writing all decisions which fall within the powers of the shareholders’ meeting, except for the amendment of the articles of association and (ii) to vote at a distance before the shareholders’ meeting by way of electronic means if the articles allow it.

The amendments summarised above entered into force on 24 December 2020.

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For additional information or guidance, please contact Sandrine Hirsch [2] or Nikita Tissot [3]

sandrine.hirsch@simontbraun.eu [4]
nikita.tissot@simontbraun.eu [5]
+32 (0)2 543 70 80