In our information note titledEXTRAORDINARY MEASURES FOR LEGAL PERSONS DUE TO THE STATE OF ALERT (I)we presented the extraordinary measures foreseen in articles 40 and 43 of Royal Decree-law 8/2020 of 17th March, applicable to private law legal entities as from this date. In just two weeks, some of the measures have been partially modified by the Royal Decree-law 11/2020, of 31st March, which entered into force on 2nd April. Specifically, herein we shall analyse the extraordinary measures (1), (3), (4) and (6) of said article 40:

 

  1. Sessions by videoconference, even when not established in the company by-laws:

The new text includes the possibility for sessions to be held by the governing body and the management organ of associations, commercial or civil law companies, the governing council of cooperative societies and the board of trustees of foundations, by multiple telephone conference as well as by video conference, on the condition applying to both of said means that

(i) all of the members of the management organ have the necessary means at their disposal; and

(ii) the secretary of the body recognises the identity of the participants of the meeting, and this is duly stated in the minutes, which shall be sent immediately to the email address of each of the participants.

Likewise, a further addition is the possibility for meetings or assemblies of associates or partners to be held by video or multiple telephone conference, also subject to

(i) all those entitled to attend or the representatives thereof having the necessary means at their disposal; and

(ii) the secretary of the body recognising the identity of the participants of the meeting, and that this is duly stated in the minutes, which shall be sent immediately to the email address of each of the participants.

In principle, the first condition may be complied with easily, although with the second, the secretary has a threefold obligation to see that this is done in practice:

(a) to recognise the identity of the participants of the meeting,

(b) to indicate this expressly in the minutes, and

(c) to send the minutes immediately to the email addresses of each attendee.

 

  1. Votes in writing and without session, even when not established in the company by-laws:

During the period of alert, the governing body and management organ of associations, commercial or civil law companies, the governing council of cooperative societies and the board of trustees of foundations, may pass agreements through written votes and without session,  provided that it is decided by the president, or when requested, by at le