These are dates for the convening of Ordinary General Meetings for the approval of Annual Accounts. On the occasion of this, it is convenient to take into account the alternatives that the emergency legislation offers us to facilitate its celebration without the need for the partners to meet in person.
On March 30, 2021, Law 2/2021, of March 29, on urgent prevention, containment and coordination measures to face the health crisis caused by COVID-19 came into force. Its 4th final provision establishes exceptional measures for the year 2021 that allow the convening, holding of General Meetings and adoption of agreements by telematic means.
Although this final Provision establishes specific measures for each type of company, we find common provisions applicable to all meetings of the Administrative Bodies and General Meetings that are to be held electronically. Thus, even when it is not provided for in the bylaws, the administrative body is empowered to provide in the call to the General Meeting the attendance of the partners by telematic means and remote voting, in the terms established in articles 182, 189 of the LSC. The fundamental requirements and what we could call "transversal" are:
- That the people who have the right of assistance or their representatives, have the necessary means, their identity is recognized, and this is expressed in the minutes. The identity of the partner or his representative must also be guaranteed, by verifying his identity by the President, which will be recorded in the minutes.
- The call, in addition to complying with the legally required content, must provide the terms, forms and manner of holding and exercising the vote.
- Regulate the possibility of exercising remote voting by postal, electronic or any other means, as long as the identity of the subject is duly guaranteed. Votes from a distance will be considered as present for the purposes of constitution of the Meeting.
- Guarantee the rights of live transmission and two-way communication in real time. In addition, the participation of the partners must be ensured through telematic assistance, representation conferred on the Chairman of the Board by remote means of communication or early voting through remote means of communication.
- The place of celebration will be considered to be that of the legal entity's registered office.
- Although the minutes are always mandatory, in these cases it is necessary that all these details are included in it to demonstrate that all the rights of partners and participants have been guaranteed, and it must be sent to the participants as soon as possible. and even go public in the case of listed companies.
More specifically, for Anonymous SocietiesAlthough the bylaws have not provided for it, the Board of Directors may provide in the call for the General Meeting (which will be considered to be held at the registered office regardless of where the Chairman of the Meeting is located) the attendance by telematic means remote voting (in accordance with articles 182 and 189 of Royal Legislative Decree 1/2010, of July 2, and article 521 thereof - in the case of listed stock companies -), as well as the holding of the meeting anywhere in the national territory. The administrative body may also agree in the announcement of the call to hold the meeting by exclusively telematic means, provided that it is accompanied by reasonable guarantees to ensure the identity of the subject who exercises his right to vote and offers the possibility of participating in the meeting by each and every one of these ways:
- telematic assistance;
- representation conferred on the Chairman of the Board by means of remote communication
- early voting through remote communication means.
Administrators will also be able to attend the meeting by audio or video conference.
In the specific case of limited partnerships and limited partnerships by shares, these measures mean that the general meeting may be held by videoconference or multiple conference call, provided that
- all persons who have the right to assistance or those who represent them have the necessary means,
- the secretary of the body recognizes their identity, and so expresses it in the minutes,
- the secretary will send the minutes immediately to the email addresses of the partners.
These same rules will govern the meetings of the Board of trustees of foundations, the sessions of the administrative bodies of associations, civil and commercial companies, and the governing council of cooperative societies and the delegated commissions and other mandatory or voluntary commissions that it had constituted.
With respect to Agreements Of the latter, without being provided for in the statutes, they may be adopted by voting in writing and without a session whenever the president decides, or at least two of the members of the body request it. It will also be considered that these agreements were made at the registered office of the legal person, regardless of where the participants in them are located. Of course, all these agreements will be governed by the provisions of Article 100 of Royal Decree 1784/1996, of July 19, which approves the Regulations of the Mercantile Registry, even if they are not commercial companies.
The above measures are applicable for the entire year 2021, although it is expected that these measures will be extended or similar new ones will be regulated for year 2022 depending on the evolution of the pandemic.
However, in anticipation and adaptation to new circumstances and more widespread use of new technologies, foresee the statutory adaptation for holding meetings remotely, which the new wording of article 182 LSC authorizes for all legal persons.
The new article 182 bis LSC regulates exclusively telematic meetings, which may be authorized by statute, as long as the modification of the bylaws is approved by partners representing at least two-thirds of the capital present or represented at the meeting. Although it is a very guaranteeing article and includes a tedious system for identifying partners and exercising their right to vote, the clear progress towards the digitization of company management and the multiple benefits cannot be ignored. that telematics meetings can save both companies and partners in terms of time and cost savings.
