Meetings of management and supervisory boards can be conducted entirely in a digital manner, subject to any conditions specified in the articles of association or regulations, with the understanding that certain restrictions may apply from a tax perspective. Pursuant to the Temporary Covid-19 Justice and Security Act, legal entities were formally permitted to conduct completely digital general meetings. However, the respective provision ceased to be effective on 1 February 2023. At present, general meetings are restricted to physical attendance or, if allowed by the articles of association, in a hybrid format that involves remote participation through electronic communication methods.
On 7 December 2022, a consultation was published for a draft bill proposing the implementation of fully digital general meetings of a public limited company (‘naamloze vennootschap’ or ‘nv’), private limited companies (‘besloten vennootschap’ or ‘bv’), association (including the association of owners (‘Vereniging van Eigenaars’, or ‘VvE’), cooperative, mutual insurance association, European Public Limited Company (SE) and European Cooperative Society (SCE). The draft bill introduces additional requirements for both fully digital and hybrid general meetings. In addition, it aims to simplify and modernise the digital convocation process. The consultation period concluded on 6 February 2023.
Requirements for fully digital and hybrid meetings
Similar to the hybrid meetings, fully digital general meetings will be optional. The draft bill outlines the following conditions for fully digital or hybrid general meetings:
- The articles of association of public limited companies, private limited companies, cooperatives and mutual insurance associations must explicitly include provisions for conducting fully digital or hybrid general meetings. Hence, any nv, bv, cooperative, mutual society, SE or SCE aiming to have the option of fully digital general meetings should amend its articles of association.
- The general meeting of members of associations and VVEs must authorise the board for conducting hybrid as well as fully digital general meetings of its members.
- The participant (shareholder or member) can be identified. The choice of identification method is left at the discretion of the legal entity.
- Participants have the opportunity to exercise their voting right in real time. The articles of association may incorporate a provision on digital voting,
- Participants can actively engage in the meeting by both listening to the proceedings ('hearing') and taking part in the deliberations ('speaking') through a two-way audio-visual means of communication (i.e., with visuals and sound).
Digital convening notice simplified and modernised
The draft bill introduces a set of revised several requirements for digital convening notices:
- The prerequisite for the party to whom the convening notice is sent by electronic means to have consented to receiving convening notices by electronic means will no longer be applicable.
- The obligation for a non-listed public limited company to announce the convening notice in a national daily newspaper will be lifted. The meeting may be convened by means of a digital public announcement which is directly and permanently accessible until the commencement of the general meeting (e.g., by posting it on the website).
- If the general meeting is conducted in a hybrid or fully digital form, the convening notices of all legal entities must include the procedure for participating in the general meeting and exercising the voting rights through electronic communication channels.
Four transitional provisions are proposed:
- A convening notice sent before the Act takes effect will continue to be valid once it enters into force, provided that it complied with the statutory requirements applicable at that time.
- Until one year after the date of entry into force of the Act, a general meeting may also be conducted electronically in accordance with the law and the articles of association of the legal entity as they read before the Act entered into force. Accordingly, legal entities have one year after entry into force to amend their articles of association.
- A provision in the articles of association that refers to a statutory provision or reflects its content prior to the Act’s enactment will be deemed to refer to the new statutory provision after the Act entered into force, unless such interpretation contradicts the intended meaning of the provision.
- Any provision in the articles of association of an association or a VvE that pertains to the exercise of voting rights through electronic means or participation of a person entitled to vote via electronic means of communication will also be considered applicable in the case of a fully digital general meeting after the Act comes into effect. This principle remains valid unless such interpretation directly conflicts with the intended meaning of the provision.
The bill is expected to be forwarded to the Advisory Division of the Council of State for its opinion in 2023. The timing of the submission to the Dutch parliament is currently unknown. Amendments could be made to the draft bill, both prior to submission to parliament and during the legislative process. We will update this blog as soon as any new developments arise.