On 20 December 2010, the Belgian Government ratified the new Act on the exercise of shareholders' rights in listed companies (the Act), which provides for the transposition of Directive 2007/36/EG. The Belgian legislator did not merely transpose this European Directive, but also introduced new, mainly optional, measures with regard to non-listed companies. This article will be limited to the new rules that apply to non-listed companies. The Act will enter into effect on 1 January 2012.
Electronic participation and voting in the general meeting
The articles of association of a public limited liability company (NV), a private limited liability company (BVBA) or a cooperative limited liability company (CVBA) can grant the shareholders the possibility to participate in the general meeting by means of electronic communication which are made available by the company.
Companies are free to organize such electronic participation and voting system, provided that (i) the identity and capacity of the shareholder can be verified and (ii) an electronic communication system is used which allows the shareholders to participate in the discussions and deliberations and exercise their voting rights in a direct, simultaneous and continuous manner. The shareholder who participates electronically is then deemed to be present at the location where the general meeting of shareholders is held.
This is thus merely an optional measure and companies who introduce this new system will need to modify their articles of association in accordance with the Act. The possibility for shareholders to participate electronically in the general meeting should be accurately and clearly described when convening the general meeting. The minutes of the general meeting should also indicate any possible technical problems or issues which prevented or disrupted the electronic participation or voting of the shareholder.
Remote voting
Prior to the general meeting, an NV can allow its shareholders to vote remotely, by correspondence or by electronic means. This measure is also optional and must also be provided for in the articles of association if the company elects to allow for this means of voting.
The NV must again be able to verify the identity and capacity of the shareholder. The Act clearly and expressly mentions the provisions that must be included in the form to be used for the proxy voting (including but not limited to the name and domicile/registered office of the shareholder, the agenda of the meeting and the type of shares held). Furthermore, the form must mention the time frame within which the shareholders are required to vote, as provided in the company's articles of association.
In addition to the NV, the aforementioned rules equally apply to BVBA's. However, the Act only requires that a BVBA be able to verify the identity and capacity of the shareholder and the Act does not impose any further obligations with respect to the form to be used for the proxy voting. The rules which apply to BVBA's are thus more flexible than those which apply to NV's.
Right to ask questions
The right to ask questions will be extended and will thus give the shareholders the opportunity to not only ask questions orally (during the general meeting), but also to formulate their questions in writing (prior to the general meeting).
Although the extension of the right to ask questions is not optional, the articles of association must nevertheless indicate the period of time within which the company must receive the written questions. These rules apply equally to the NV, BVBA and CVBA.
Lastly, the Act confirms the obligation of the directors and statutory auditors to answer the questions, provided that the answer is not detrimental to the business interests of the company or to the confidentiality to which the company, the directors or the statutory auditors committed themselves.
