Digital general meeting enshrined in law

Earlier, we wrote about the Temporary COVID-19 Act that allowed the general meeting to take place online during the corona period. This was an exception to the requirement that the general meeting take place physically (or partially physically). This was done unless all persons entitled to attend meetings agreed that the general meeting be held digitally. Meanwhile, a new bill has been submitted for the Digital General Meeting of Private Legal Entities Act. This will legislate that the general meeting private limited companies (B.V.), public limited companies (N.V.), associations and cooperatives, may be held entirely digitally.

What do you need to watch out for?

Conditions are that enough members or shareholders agree. They should be properly informed about access to a digital meeting, identification and voting should also be digitally enabled by the legal entity organising the meeting. The bill also makes it possible to send meeting notices by mail.

Note that apart from shareholders, there may also be other ‘meeting beneficiaries’. For example, holders of depositary receipts with meeting rights or pledgees with voting rights.

It is not yet clear how the forming parties view this proposal. Despite this, the aim seems to be that this law will be active by 1 January 2025.

Statutes

The legislator opted for the wording “unless the articles of association provide otherwise” because this fits best into the system of the law. It must be sufficiently clear from the statutory provision itself that it deviates from the legally created possibility, by authorisation, to convene a meeting by electronic means only. Consider referring to the statutory terminology of meeting exclusively or also electronically. Or terms such as “The general meeting of members will take place exclusively by physical means”. Or “There will be no meeting by electronic means whatsoever”. An implied deviation, such as only a statutory provision regarding physical meetings or a statutory provision designating the physical place of meeting, is not an ‘other provision’, as referred to above.

Do your company’s articles of association prescribe sufficiently clearly that the general meeting can only take place physically? And do you still want to make use of the option to hold the general meeting digitally? You will then have to amend the company’s articles of association. This requires a resolution of the general meeting and the articles of association must be amended by notarial deed.

Decision-making outside a meeting

Finally, we would like to point out the possibility of decision-making outside a meeting, which is already enshrined in the law. This means that decision-making by shareholders can take place in a manner other than in a meeting if:

1. all persons entitled to attend meetings have agreed to this method of decision-making;
2. the votes are cast or recorded in writing and;
3. the directors and supervisory directors of the company have been given the opportunity to give their advice prior to the decision-making.

This already makes it possible, for example, to take decisions at short notice without convening a meeting. In practice, this is frequently used by, for example, circulating a shareholder resolution signed by all shareholders.

Contact

Do you have any questions following this article? Or any other questions? Then contact one of our lawyers by mail, telephone or fill in the contact form for a free initial consultation. We will be happy to think along with you.