CORPORATE LAW: REMOTE ASSEMBLING

Covid times proved challenging for companies seeking to physically gather stakeholders / shareholders for holding annual Meetings and thus observe their legal obligations. When it comes to remote assembling, not all companies had this provided for in their Incorporation documents. So a legal text allowing remote assembling was most needed. Such matter is from now on addressed by the provisions of the GEO no. 62/2020 published in the Official Gazette no. 372 of May 8, 2020.

The main legal provisions

1. Convening the General Meetings of Shareholders

General Meetings can from now on be convened :

- either in the old fashion, as previously provided for by the Law no. 31/1990 on companies, namely by publication in the Official Gazette , in a widely read newspaper, by registered letter, etc.
- either by any other remote communication means ensuring transmission of the text, as for example: a letter sent via email with (as the case may be) a qualified electronic signature / fax / any other remote communication means ensuring transmission of the text. The convening letter shall also be published on the company’s website if the company has one.

2. Communication of information and documents

The information and the documents regarding the topics on the agenda such as the annual balance sheet, the report of the Board of Directors / Governing Board and the report of the Surveillance Board, the report of the auditors, etc. shall be sent via email or, upon request, to the addressees.

3. How to hold the General Meetings

In the context of the pandemic, the text provides that the General Meeting can be held by correspondence / by direct remote communication means, whether the Articles of Incorporation of the company provides for such a possibility or against it.

The convening letter shall, as always, provide for all the legal information such as (i) the date and the hour of the meeting; (ii) the participation means and holding of the meeting and access thereat (iii) the place or the authority to represent others in the meeting as well as the voting means .

The General Meeting may be held by direct remote communication means, such as videoconference, teleconference as well as other applications – such as Skype, Microsoft Teams, Zoom Meetings, etc. provided for the secrecy of the vote (if necessary) and the right to vote by correspondence are observed. The remote communication electronic means must meet the technical requirements in order to ensure :

1. Compatibility with the most used fix or mobile access technologies ; with a higher number of operating systems and the connexion with the fix or mobile electronic communication public networks ;
2. Identification of the participants and their effectively participating ;
3. Uninterrupted and in real time transmission of the General Meetings, their recording and storage ;
4. Bidirectional simultaneous communication, so that the participants can address to the General Meeting remotely ;
5. The exercise of the right to vote and its being recorded ;
6. Subsequent check of the way in which the vote was exercised.

4. The vote

The Shareholders shall communicate their vote by correspondence, by using one of the means provided for in the convening letter: registered letter / post/ letter / letter sent via email with a qualified electronic signature attached thereto or logically implied, so that the vote is received by the company until the date at which the meeting is held.

5. Minutes and decision of the Meeting

Once drawn up, the Minutes are signed by the authorized persons … usually the President of the Board of Directors either by handwritten or qualified electronic signature

6. Application of the GEO no. 62/2020

The provisions of the GEO no. 62/2020 on the convening formalities and/or holding of the General Meetings by remote communication means apply as well to:

• General Meetings, convened before the entry into force of this GEO meaning before May 8, 2020, but which date is set at a date subsequent to the date at which the state of emergency was declared. In this case, the shareholders shall be informed about the new ways of holding the meeting and how the right to vote shall be exercised, at least 5 days prior to the date at which the meeting is held.
• General Meetings convened during the state of emergency but which are to be held after the end of the state of emergency and during the first 2 following months.

The text does not apply to public listed companies.

7. Meetings of the collective bodies (Boards of Directors, Surveillance…)

As laid down for the General Meetings of the Shareholders, during the state of emergency, the meetings of the Boards of Directors, Surveillance Boards and other meetings of Governing Bodies may be held by direct remote communication means … without thus exceeding 30 days after of the end of the state of emergency.

8. Deadline for the Ordinary General Meeting of the Shareholders for approval of the annual financial statements

The deadline for holding the Annual Ordinary General Meeting of the Shareholders for approval of the annual financial statements for 2019 was extended until July 31, 2020.

The new legislative measures regarding companies, regulated under the GEO no. 62/2020, lay grounds for equal treatment of all the shareholders of a company and create the premises for their expressing of their rights as minority shareholders whilst maintaining transparency of the General Meetings and without impacting on the drawing up of the documents by the management and administrative bodies of the company with respect to general meetings.