Remote meetings of limited companies
The shareholders’ meeting in corporations
The shareholders’ meeting is a periodic event in the life of a company and by law is required at least once a year for the approval of the balance sheet, as well as being required for other particular needs of the company (for example: appointment of directors, extraordinary operations and particularly “delicate” operations, as well as when, again according to law, a qualified part of the shareholders requests it).
“Videoconference”: from innovative provision to consolidated reality
Since 2003 (company law reform) it has been possible to provide in the by-laws of corporations the possibility for shareholders to intervene in the meeting “by means of telecommunications” (art. 2370 of the Italian Civil Code): in substance, it is possible for shareholders to take part to it without being physically present in the place where the meeting is convened (generally the company’s registered office).
This modality obviously facilitates the possibility for those who have to attend the meeting not to have to participate physically.
What has been called “videoconference” should actually be intended as “audio-video conference“, i.e. providing not only video but also audio connections: for the sake of simplicity, the term “videoconference” will be used hereafter.
In any case, this method must enable the Chairman of the meeting to correctly identify the participants and to check that they are able to receive and make speeches.
Indeed, by law, the Chairman of the meeting is always in charge of verifying the identity and legitimacy of the persons attending the meeting, as well as, obviously, of “directing” the meeting itself.
The current Covid emergency and changes in the area of shareholders’ meetings
The current Covid emergency has also had a considerable impact in the corporate sphere.
In particular, Art. 106 of Law Decree no. 18/2020 (converted with amendments into Law no. 27/2020) which had provided (inter alia) for limited companies – also as an exception to the provisions of the Articles of Association – to be able to provide, in the notice of call, that the Shareholders’ Meeting could also be held by means of telecommunications (in essence: videoconference).
It was also envisaged that this method could be the one allowed (in the notice of call) exclusively for the holding of the meeting: however, it was deemed necessary that it should be possible to identify the participants, that they should be able to actively participate and that the valid expression of the right to vote should be allowed.
Moreover, with the exclusive provision of the meeting by videoconference, it is not necessary to indicate a “physical” place where the meeting is held: in fact, the chairman of the meeting, the secretary and the notary (besides, obviously, the individual called shareholders) do not necessarily have to be in the same place.
This provision, that was initially extended to 2021.12.31, was further extended to 2022.07.31 pursuant to art. 3 of Law Decree no. 228 of 2021.12.30: therefore, until the above-mentioned deadline, despite any specific provision contained in the Articles of Association, the holding of the meeting by means of videoconference is still possible.
The “posthumous” minutes
On the basis of the above, there are repercussions also with regard to the drafting of the meeting minutes (which give an account of what happened during the meeting).
Even before the 2003 reform – on the basis of the guidelines of the Notary Council of Milan – it was considered possible to draw up the meeting minutes afterwards: Article 2370 of the Italian Civil Code then expressly admitted this possibility.
It is therefore possible, within certain limits, to take minutes of the meeting not necessarily on the day it was held but subsequently.
The most recent guidelines on videoconference
Leaving aside for a moment the above-mentioned legal exemption until 2022-07-31, a clause in the Articles of Association was deemed admissible which allowed the meeting to be held also exclusively by videoconference (full audio-conference) without providing for any physical location for the meeting material; it was also deemed admissible – if the Articles of Association provide for videoconference in abstract – that the notice of call of the meeting, by the directors, also provides exclusively for this method, as well as that it is possible to have a clause in the Articles of Association that allows the meeting to be held only by means of teleconferencing; this guideline is to be understood as extending also to the meetings of the Board of Directors (maxim Notarial Council of Milan no. 200)
Among other things, it is always possible that the total meeting (i.e. in the absence of the formalities provided for by law or by the Articles of Association) can also be held exclusively by means of telecommunications, with all those entitled connected from different places (maxim no. 187 of the Notarial Council of Milan).
In the same vein, another notarial guideline (Triveneto, maxim H.B.39), according to which, in “closed” joint-stock companies, even in the absence of a specific provision in the Articles of Association, it must be deemed possible to take part in the meeting by means of videoconference, provided that the principles of the collegial method are complied with (the verification of which, as mentioned, is the responsibility of the Chairman of the meeting). This is without prejudice to the possibility for the Articles of Association to regulate the matter differently and without prejudice to the right of the shareholder to physically attend the meeting (which, in the light of the “emergency” derogation currently in force, must at least be considered suspended). Already with this maxim, however, with the unanimous consent of the shareholders it is always possible to derogate from the statutory rule.
In the light of what has been briefly seen, if the Articles of Association of joint-stock companies envisage the possibility of holding the Shareholders’ Meeting by videoconference, this allows the Directors to use this modality also as an exclusive one, i.e. only allowing the participation “by remote”; this also applies to the meetings of the administrative body.
All this is without prejudice to the fact that until 2022.07.31, as provided for by the law extension, it is possible in any case to provide for the participation in meetings by means of videoconference (and therefore also in silence or in derogation of what is provided for by the Articles of Association).