Royal Decree-Law 8/2020 of March 17th established a series of extraordinary urgent measures related to the Covid-19 pandemic, some of which focused on the area of commercial law. Among these, one of the extraordinary regulations addressed the rules governing shareholder meetings of commercial companies (as well as associations and other legal entities), with the aim of enabling them to be held remotely.
These measures, regulated in article 40 of the aforementioned Royal Decree Law, were initially intended to be applicable during the state of alarm, although subsequently, through Royal Decree Law 21/2020 of June 9, their validity was extended until December 31, 2020.
Thus, the consolidated text of Royal Decree Law 8/2020, in its article 40.1 second paragraph, literally states:
“Even if the statutes did not provide for it, during the state of emergency and, once it has ended, until December 31, 2020, meetings or assemblies of associates or members may be held by video or by multiple telephone conference provided that all persons entitled to attend or those who represent them have the necessary means, the secretary of the body recognizes their identity, and so states in the minutes, which will be sent immediately to the email addresses.”
It is worth remembering that according to current legislation (the Capital Companies Law) the personal attendance of the partners at the meetings is mandatory, since the possibility of attending them electronically is only contemplated for public limited companies and provided that such possibility is included in their statutes.
Therefore, as an exception to the general regulations, until December 31, 2020, even if the company's bylaws do not provide for it, shareholder meetings may be held by videoconference or multiple telephone conference provided that the following conditions are met:
- That all participants have the necessary technical resources.
- That the Secretary of the board acknowledge the identity of all participants and record it in the minutes.
- The Secretary should immediately send the minutes of the meeting to the participants' email addresses.
Regarding the requirements for holding the meeting by video conference or multiple telephone conference, the first one (that the participants have the necessary technical means) is obvious and presents no difficulty.
Regarding the Secretary's recognition of the participants' identity, this task will not present difficulties in video conferences and multiple telephone conferences in societies with few partners and acquaintances among them, while in societies with a large number of partners, this recognition of identity may be more difficult and laborious.
In order to avoid suspicion and possible controversies regarding the recognition of participants, even though it is not legally established as an obligation, it could be useful to proceed to record the board sessions (both videoconferences and multiple telephone conferences) and attach those recordings as an annex to the minutes of the meeting, in which case it is necessary to expressly indicate to the participants before starting the meeting that the session will be recorded.
As for the last requirement, sending the minutes of the meeting to the participants via email also does not pose any special difficulty, since once the minutes have been prepared by the secretary, he must proceed to communicate their content to the participants via email.
Finally, it is worth noting that this exceptional regulation, enabled to reconcile the health precautions derived from Covid-19 with the fulfillment of the legal obligations of companies, may end up being the embryo of a future modification of commercial regulations in the sense of establishing, as possible forms of holding meetings, also those that are telematic without the physical presence of the participants.
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A graduate in Law from the University of Barcelona and with a Master's degree in Business Law from the same university, he worked at the law firm Alonso-Cuevillas Advocats and later joined the Civil and Commercial Litigation department of the law firm Bufete Bueno Bartrina. He then joined the team at the firm Casamitjana-Cuyas-Morales, and subsequently continued his career at Bufete Herrera Advocats, in the Commercial and Litigation department. In November 2015, he joined aÀmbitJurídic i Econòmic, SLP, as a professional partner, to head the Commercial and Insolvency practice.
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