Videoconferencing in the codified regulations
In the current discipline of the Civil Code, the provision of videoconferencing was introduced (with the 2003 reform) to facilitate the participation of shareholders in the meeting, assuming, however, that the standard mode of participation was in presence, at the place of convocation; That provision necessarily indicated a physical place, commonly identified at the registered office but, if provided for in the bylaws, also at another geographically identifiable place.
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The shareholders’ meeting could also take place through audio-video link, if provided for by express provision in the bylaws (at least expressed in a generic form).
However in the practice of the bylaws the mode of videoconferencing is always provided not only for participation in the shareholders’ meeting but also for meetings of the board of directors.
Generally speaking about corporate meetings (shareholders’ meetings and board meetings), it is the duty of the chairman of the meeting to ascertain that the connected persons are validly allowed to participate. The attendees can be also aware of the statements issued and make statements, as well as be able to validly cast their votes.
Videoconferencing “in any case”
The recent emergency regulations had prompted the legislature to allow the videoconference mode in any case, even if it was not provided for in the bylaws: in essence, until the deadline set by the law (which was ultimately set at 07/31/2022) videoconference participation was allowed even if the company’s bylaws did not provide for this mode.
That regulation expired, leaving operators in doubt as to whether or not the bylaws needed to be “updated” after the “emergency phase” was over.
The guidelines on the matter
There was therefore a widespread need to amend any bylaws that did not provide for videoconferencing (generally these are bylaws that, as anticipated, refer to companies incorporated at least before 2003 if not even earlier) and in any case to regulate the matter even more fully. In the meantime:
- there were cases in which, due to an outdated drafting technique, the videoconference mode was indeed provided for, but on condition that the chairman and the secretary (or notary, if it was an extraordinary meeting) were present at the place of convocation. In these cases, any totalitarian meeting – i.e., a meeting convened without a regular convocation process – should not take this requirement into account, valuing in a broader sense the “remote” participation of the chairman and secretary wherever they were as long as they were validly connected;
- there was likewise a widespread notarial orientation that allowed in the bylaws not only to provide for videoconferencing as an abstractly usable means but even that it was possible to “impose” it as the sole (exclusive) mode of conduct by the directors convening the meeting. Therefore, legitimizing “fully remote” meetings, the need for indication of a physical location is now eliminated (and this certainly represents a notable development that in fact “outdated” the codictic norm seen above, now any person entitled to participate can do so wherever he or she is).
Meeting “again” by videoconference
The legislator, noting the enormous success of corporate meetings by videoconference, recently intervened with the D.L. Milleproroghe to “rec
over” the emergency legislation effective until next 07/31/2023.
In essence, there is a return to what was there before for the future: an obvious “back to the future” that certainly can only favor those companies that do not have any provision in their bylaws that allows the participation mode by videoconference.
So, until 07/31/2023 in any case, shareholders’ meetings (and, for identity of rationale, also the meetings of the board of directors) will be able to take place by videoconference.
Conclusions
Allowing without limits the use of videoconferencing, for all companies that are
required to convene a shareholders’ meeting, certainly represents an extremely facilitating measure to allow all those who are entitled to participate. The modernity and diffusion of information technology tools, in fact, is widespread almost capillary and it seems at least anachronistic to think of the shareholders’ meeting now as a meeting to be held in a physical place.
Certainly until 31.07.2023, one can only take note of the regulations in force: whether and how much subsequent exceptions will be replicated will remain to be seen; certainly an appropriate amendment to the bylaws regulating videoconferencing properly – also in accordance with the above guidelines – seems a very opportune procedure.
All unless we have the legendary Delorean and move into the future to see if the legislator will again want to provide for videoconferencing in any case.