The Official State Gazette (“BOE” – Boletín Oficial de Estado) of the 13th March 2021 published Royal Decree-law (RDL) 5/2021, of the 12th March, on extraordinary measures designed to support business solvency in response to the COVID-19 pandemic. The main aim of this regulation is to deploy different packages of measures to support companies or freelancers who are in a very difficult economic situation as a result of the COVID-19 pandemic, with a view to protecting the fabric of productivity and avoiding a structural impact upon the economy. In addition, pursuant to final provision eight of the same regulation, article 3 of the Royal Decree-law 35/2020, of 17th November, on urgent measures supporting business solvency and the energy sector, which establishes the extraordinary measures, is modified. With this modification, the uncertainty regarding the requirements for the summons to hold a meeting by electronic means in accordance with that established in the RDL 35/2020 is clarified.
This article provides an overview of meetings held by electronic means, which are allowed pursuant to the aforementioned RDL 35/2020 and RDL 5/2021.
I. Joint-stock companies
In the case of joint-stock companies, the board of directors may anticipate in the summons of the general meeting the attendance by electronic means and also remote voting, even if this has not been established in the company bylaws, in the terms established in articles 182 and 189 of the Royal Legislative Decree 1/2010, of 2nd July, and of article 521 of the same legal text, in the case of listed joint-stock companies, as well as the holding of the meeting in any part of the national territory.
Furthermore, the administrative body will be able to decide in the announcement of the summons of the meeting whether the meeting will be held exclusively by telematic means, that is, without the physical attendance by the partners (shareholders) or their representatives, as long as there are reasonable guarantees in order to ensure the identity of the subject who exercises their right to vote and that they are offered the chance to participate in the meeting by all and any of the following means: (i) attendance by electronic means; (ii) representation conferred upon the Chairman of the Meeting by means of long-distance communication and (iii) early voting by means of long-distance communication. The directors may attend the meeting, which will be deemed to be held at the registered office of the company irrespective of the location of the Chairman of the Meeting, by telephone conference or by videoconference.
II. Limited Companies
Even though it is not so established in the bylaws, limited liability companies may hold the general meeting by videoconference or by telephone conference, as long as all those with the right of attendance, or those representing them, have available the necessary means, and the secretary of the administrative body recognises their identity, and so states it in the minutes of the meeting, which will be immediately sent to the email addresses of the attendees .
III. Conclusion
As we have seen, the most important point is that in both joint-stock companies and limited companies, even if it is not provided for in the company bylaws, it is possible for the meeting to be held by exclusively electronic means. However, given that this measure is extraordinary and only applicable during the year 2021, if a company, whose bylaws in force do not provide for meetings to be held by electronic means, wishes to hold the meeting by electronic means in the future, the company bylaws must be modified in the meeting of the year 2021 in order to allow the holding of the general meeting or assemblies of associates or partners (shareholders) via electronic means.
Mika Tsuyuki
Vilá Abogados
For more information, please contact:
9th April 2021
