Electronic or virtual general meeting during the COVID-19 epidemic
02 December 2020
The sixth anti-coronavirus package or PKP 6, which was adopted on 25 November and entered into force on 28 November 2020, temporarily introduced the possibility of holding a general meeting by electronic means also for those companies that do not have this possibility in their articles of association. In order to facilitate and safely hold general meetings during the epidemic, the Act amends the provisions of the Companies Act (ZGD-1) for the duration of the COVID 19 epidemic. The amendments will apply to general meetings convened during the epidemic and, under certain conditions, also to those convened before the implementation of the PKP 6.
In order to hold a virtual or electronic general meeting, the management must determine the procedural rules and publish them at the places where the company is obliged to publish the convening of the general meeting. It must do so no later than on the day of the convening of the general meeting.
In case of the general meeting convened before the entry into force of PKP 6, the company must notify the shareholders and persons referred to in the first paragraph of Article 299 of ZGD-1 of the change in the convening of the general meeting and publish the rules of procedure in accordance with law at the places where it is obliged to publish the convening of the general meeting.
A virtual general meeting can be held if the following conditions are met:
- that the transmission of the image and audio of the whole general meeting in real time is ensured,
- that the conditions for establishing the identity of shareholders or their proxies are provided,
- that voting of shareholders or their proxies at the general meeting is possible by electronic means, and that the conditions for secure electronic communication are provided,
- that shareholders may exercise the shareholder's right to be informed in accordance with Article 305 of ZGD-1 by using electronic means (for which certain specific rules apply, as described below).
The management assesses to which questions, submitted by shareholders for the purpose of exercising the shareholder's right to be informed under Article 305 of ZGD-1, and in what way the company will answer. The management may stipulate in the convening of the general meeting that the shareholders must submit questions to the company using electronic means no later than two days before the general meeting.
In the minutes of the general meeting, in addition to the information specified in paragraph 2 of Article 304 of ZGD-1, the manner of determining the content of votes must also be stated.
Further on, it is possible to vote by post before the general meeting, provided that this option has been specified in the convening of the general meeting.
The chairman of the general meeting may remotely sign the minutes of the virtual general meeting with an electronic signature, an advanced electronic signature or seal based on a qualified electronic signature or seal certificate, or a qualified electronic signature or seal.
The identity of shareholders present or represented at the general meeting and their representatives shall be verified by the person who convened the general meeting or by the chairman of the general meeting. However, the identity of the person who convened the virtual general meeting and the chairman of that general meeting should be verified by a notary public, who may also do so on the basis of a qualified certificate for electronic signature or seal.
Shareholders may authorise a proxy to represent them at an electronic or virtual general meeting by electronic means, and they may revoke this authorization at any time in the same manner.
The company must also publish the method of submitting proof of appointment of the proxy using electronic means and the method of exercising the right to vote at the general meeting at the places where it is obliged to announce the convening of the general meeting, no later than on the day of convening the general meeting.
PKP 6 also provides for exceptions to the challenge of general meeting resolutions. Shareholders who exercised the right to vote at the virtual or electronic general meeting have the right to challenge the resolutions of the general meeting even if they did not notify the intention to challenge the resolution in accordance with the first paragraph of Article 397 of ZGD-1. Further on, it is not possible to challenge the resolutions of the general meeting due to violations of rights resulting from technical disturbances in the use of technical means, unless the technical disturbances are the result of gross negligence or intent on the part of the company convening the general meeting. Also, the general meeting's resolution cannot be challenged solely because of the restriction of the shareholder's right to information resulting from the holding of a virtual general meeting.
The provisions on the electronic or virtual general meeting shall also apply mutatis mutandis to limited partnerships and European joint stock companies, and to a separate meeting and separate vote referred to in Article 313 of ZGD-1, unless otherwise provided, whereas in limited liability companies, the shareholders holding a majority of the votes may decide in writing not to conduct the general meeting. In this case, the shareholders shall communicate their votes to the management in writing, by telephone, telegram or by the use of similar technical means.
Finally, it should be emphasized that despite the above, it is still possible to hold a general meeting with a physical presence, as this falls within the scope of economic activity of the company, to which the gathering restrictions due to the COVID-19 epidemic do not apply – provided that the recommendations and instructions of the National Institute of Public Health (NIJZ) are respected.
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