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Covid-19: Special Arrangements For Holding General Meetings And Meetings Of Management Bodies
In view of the spread of the Covid-19 epidemic and the quarantine, some rules applicable to companies and organizations have been temporarily modified in order to facilitate the holding of the different General Meetings.
These flexibilities, introduced by Order No. 2020-321 of 25 March 2020 and supplemented by Implementing Decree No. 2020-418 of 10 April 2020, have a very broad scope of application since they apply to all meetings of legal persons and entities without legal personality, under private law (companies, cooperatives, associations, etc.), held between 12 March 2020 and 31 July 2020.
Firstly, with regard to the rules for convening and informing meetings, the Ordinance provides that, for public companies, no meeting is invalidated if a meeting, which must be convened by post, cannot be convened due to circumstances beyond the company's control (e.g. impossibility of access to the company's premises).
Also, when a legal provision or an article of association requires the communication of a document or information to the shareholders prior to the holding of a meeting, this communication can now be done electronically.
Concerning the holding of General Meetings, the ordinance provides for several ways of organizing them:
- Without the presence of the partners and members authorized to participate, i.e. "behind closed doors", by decision of the body competent to convene the meeting. In this case, the participants will participate or vote at the meeting according to the modalities provided by the author of the convocation, in accordance with the provisions in force (proxy, remote voting, videoconference...);
- By telephone or audio-visual conference, provided that the technical means implemented allow the identification of participants, the possibility of oral interventions and the continuous and simultaneous retransmission of the deliberations;
- By written consultation, for companies whose law already allowed this mode of consultation before the crisis (SNC, SARL, civil companies, etc.), which is not the case for public limited companies (SA).
Recourse to one of the above alternative methods of holding the meeting may be made notwithstanding any provision from the articles of association to the contrary.
Moreover, the fact that all or part of the formalities for convening the meeting have already been completed, before the decision to use an alternative method, does not prevent such change.
In this case, the members of the meeting must be notified of the change by any means to ensure that they are effectively informed, at least three working days before the date of the meeting (as soon as possible in public companies), without prejudice to the formalities that remain to be completed on the date of the decision.
Similar flexibility is provided in the case of meetings of collegial management, administrative and supervisory bodies.
The management bodies may validly meet by telephone or audiovisual conference, provided that the means used:
- Allow the identification of each participant and their effective participation;
- Allow the continuous and simultaneous retransmission of the deliberations.
Decisions may also be taken by written consultation, under conditions that ensure the collegiality of the deliberations.
In addition to these special arrangements, the Order 2020-318 about the rules regarding the preparation, auditing, review, approval and publication of financial statements was adopted.
This ordinance provides for an extension of three months of the time limit imposed by the texts to hold the meeting to approve the accounts, for private law organizations closing their accounts between 30 September 2019 and the expiry of a period of one month after the date of cessation of the state of health emergency.
The approval of the accounts of commercial companies may therefore be carried out up to nine months after the end of the financial year.
However, companies whose statutory auditor has issued a report on the annual accounts before March 12, 2020 will not be able to benefit from the extension of the deadlines.
Vincent GAUTIER holds a DEA from the University of Paris I La Sorbonne and is a partner of the law firm Jean Claude Coulon & Associés. He is specialised in business law and especially in corporate law, mergers and acquisitions particularly the acquisition of companies holding real estate assets.