Could you please provide some information about your country’s regulation on the use of digital technologies in general meetings?
1.1. Does your country allow a company to hold a meeting entirely digitally or not?
Pursuant to the Belgian law of 20 December 2020, some Belgian companies – depending on their legal form – are allowed to hold an entirely digital general meeting as of 24th December 2020, without any statutory authorisation.
More specifically, the following (most common) legal forms are allowed to hold an entirely digital general meeting according to the Belgian Code on Companies and Associations (“the BCCA”):
In unlisted Belgian companies, the decision on whether to hold a digital or physical general meeting is entrusted to the board of directors. In listed Belgian Companies, there is – in the case of a physical general meeting – a legal obligation to at the same time foresee digital technology that allows other shareholders to participate electronically.
However, if and to the extent that a shareholder wishes to physically participate in a (digitally organised) general meeting, such wish must be respected. Shareholders must thus always retain the option to physically participate in a general meeting, regardless of the decision of the board of directors to hold a digital general meeting.
1.2. How can a company identify who is participating and voting in the general meeting? Are there any barriers to the use of new digital technologies in the identification of shareholders?
In order to verify whether the conditions of attendance and majority are fulfilled, the company at stake must verify the identity of the digital participants.
The BCCA does not clarify in what manner this verification should take place, but only imposes the obligation that the digital technology used must allow identity verification. Therefore, such verification can be done via (the most common) video or telephone conferences such as Microsoft Teams, Zoom, Skype or WhatsApp (or any other similar system) by the participant holding his/her ID card up to the camera.
There is no obligation to use more sophisticated electronic communication tools with access control. Although, for security reasons, the company may – at its sole discretion – impose additional conditions thereto.
1.3. Does a requirement to identify the place of a meeting allow the company to specify an electronic address for a shareholder to access?
If a shareholder digitally participates in a general meeting, that shareholder is deemed to be present at the (physical) place where the general meeting is held. For this reason, the requirement to identify the place of a meeting does not block the company from specifying an electronic access address for a shareholder to access.
Does your national legislation provide any barriers to the use of new digital technologies in the communication between issuers and shareholders or the participation of and voting by shareholders in general meetings.?
2.1. Where meetings are held digitally (or a combination of digitally and in person), do there need to be particular protections to make sure shareholders can still ask questions?
If and to the extent a general meeting is (partially) held digitally, the digital technology used must meet the following legal conditions:
Similar to the explanations above, the BCCA therefore does not impose particular protections measures with regard to the possibility of asking questions. It is however the responsibility of the company at stake to organise the digital general meeting in such way that a shareholder has the possibility to ask questions. Therefore, the invitation letter must include a clear and precise description of the measures that will ensure that the general meeting will take place in line with the abovementioned legal conditions (such as the possibility of a digitally participating shareholder to ask questions).
Failure to comply with the abovementioned legal conditions may result in the nullity of the decision taken by the general meeting.
2.2. Can the company require shareholders to ask questions before the meeting? If questions can be asked at the meeting, how is this controlled? How must the company enable this? How do shareholders know what questions other shareholders are asking and how they are answered? (If it is a meeting in person, they are able to hear the questions and answers.) Can the company group questions relating to a similar topic together and answer them together?
According to the BCCA, shareholders can exercise their right to ask questions in two ways. On the one hand, they can orally ask questions during the general meeting. On the other hand, they can ask questions in writing as a response on the invitation letter. In both cases, these questions need to relate to the agenda items. Furthermore, the right to ask questions can only be exercised to the extent that the disclosed information is not of such nature that it would be harmful to the business interests of the company and/or in breach of any confidentiality undertaking of the company or its directors. Similar questions can be grouped and answered at the same time.
Questions will be answered at the time the agenda item at stake is discussed. Appropriate time limits to speak and have a subsequent discussion may be set during the meeting or in advance. This discussion needs to be accessible and audible for any (digital or physical) participant. The ongoing discussion will be controlled by the chairman.
2.3. What is the position if a shareholder loses their connection to the meeting (is the meeting still valid)? What if the link being used by the company is lost, so all shareholders lose the link? Can the company simply reinstate the link within a certain period of time and is that still a valid meeting?
The BCCA only imposes the obligation to map out any technical issues and/or incidents that happened during the (digitally held) general meeting in the minutes. An explicit regulation on what to do in case of technical problems is missing.
From a pragmatic point of view, it is advisable to wait until the technical issue is resolved and afterwards resume the meeting and/or reschedule the meeting (in the case of ongoing technical issues). The occurrence of technical problems does not automatically give rise to nullity or an invalid general meeting. Such nullity or invalidity must always be claimed. For example, a shareholder can claim the nullity of the decision due to irregularities in the adoption of a certain decision (e.g. technical issues) if the shareholder at stake proves that the irregularity had an influence on the deliberation or the irregularity was committed with fraudulent intent.
Please provide us with any other information or comments you deem important.
Regardless of whether a general meeting is held physically or digitally, the so-called ‘members of the bureau’ are in any case prohibited from participating electronically. Their physical attendance is necessary since these members have to obligation to sign the minutes and have the responsibility to verify valid composition and voting.
In addition, some (digital or physical) general meetings are only valid when there is an involvement of the notary public. As an example, decisions on capital increase or modification of the articles of associations require notarial intervention.