The Code of Companies and Associations (CCA) does not mention the possibility to hold board meetings by video conference or teleconference. Traditionally, it has been accepted that board meetings should be held in person and that members who cannot attend should grant a proxy to another member to represent them. Attendance has been construed to mean physical presence at the same location, as this was thought to be the best possible (if not the only) way of conducting deliberations on difficult business decisions and other issues relating to the company.
Indeed, in a collegial body with majority rule, the members need to be able to set out their arguments, with reference to documents distributed in advance (together with the agenda or otherwise), before a decision can be taken. It was long thought (and taught) that such deliberations and decision-making were only possible in the context of a physical meeting.
Today, however, meetings can be held effectively by video conference or teleconference, using high-quality tools that allow full participation. Apps such as Teams, Zoom and Skype can even be used for meetings with a large number of participants. Obviously, board members do not have to be in the same location. In a virtual meeting, the chairperson plays an even more important role and is responsible for ensuring that everyone can have his or her say. It is also possible to add features such as the raise hand or chat function. In any case, it is crucial for the organiser to verify or authenticate the identity of those in attendance as so-called Zoombombing, the intrusion of uninvited persons into meetings, has become so frequent of late that failure to take appropriate security measures could be considered a form of negligence.
More and more legal scholars agree that meetings held by video conference are as valid as physical meetings. Some note that it is not possible to read body language during a teleconference, but this is not strictly required in order to take a decision, provided each participant can hear what the others have to say and can intervene to make her or his point. A video conference or teleconference should be distinguished from the procedure to take decisions in writing, which requires the unanimous consent of all directors (due to the absence of deliberations).
This position was confirmed by Royal Decree No 4 of 9 April 2020 on the organisation of meetings during the Covid-19 pandemic. Article 8 of the royal decree expressly states that board meetings can be held by video conference or teleconference even if the company's articles of association do not provide for, or prohibit, this possibility. In the event a notarial instrument is required, only one director needs to be physically present at the notary's office or, alternatively, the board (deciding by majority) can grant a special power of attorney to an individual to represent it before the notary. This can be a person working with the notary. The power of attorney can be granted orally during the video conference. The notary may require confirmation in writing, in which case an email should suffice, but it is advisable to check with the notary as some may require a written power of attorney.
Based on the wording of the royal decree, it could be deduced that holding a meeting by video conference or teleconference after the Covid-19 pandemic (when the royal decree no longer applies, i.e. currently as from 30 June 2020) will only be possible if the articles of association so allow. This is not in accordance with the opinion of legal scholars, who agree that meetings can always be organised by video conference or teleconference provided discussion is possible and participants are able to vote when a vote is required. However, if the articles of association expressly prohibit the holding of meetings by video conference or teleconference or require that meetings be held in person, with all participants at the same location, it will not be possible to hold virtual board meetings after the Covid-19 pandemic.
In conclusion, during the current pandemic, there is no doubt that board decisions can be validly taken by video conference or teleconference, provided documents supporting the agenda items are made available to all participants, deliberation is possible, questions can be asked by each participant, and voting is possible if required to come to a decision. If certain members cannot attend, a hybrid meeting can be held, meaning a physical meeting combined with a video conference or teleconference for those who cannot be present. Members who are unable to participate at all can grant a proxy to another board member to represent them at the meeting.
