The Belgian Code of Companies and Associations (“BCCA”) has recently been amended to enable companies and associations to deal with the unprecedent situation triggered by the COVID-19 crisis.
Various articles of the BCCA have been modified, and some new articles have been inserted by the Act of 20 December 2020 laying down various temporary and structural provisions within the framework of the fight against the spread of the coronavirus COVID-19, published in the Belgian Official Gazette on 24 December 2020 (“the Act”).
For (international) not-for-profit associations (“(I)NPAs”), this means the following.
Electronic meetings - The administrative bodies of NPAs (insertion of an Article 9:16/1 BCCA) and INPAs (insertion of an Article 10:7/1 BCCA) can organise remote general meetings by using digital communication means, irrespective of the terms of the articles of association.
The Act specifies that the (I)NPA must be able to verify the capacity and identity of the member taking part in the electronic meeting. Additional conditions can be set by the association to secure the electronic means of communication. The electronic means must always enable the members to simultaneously, directly and continuously follow the discussions and to exercise their voting rights.
The electronic means must also always enable the members to participate in the deliberations and to exercise their right to ask questions in accordance with applicable legislation. As a temporary measure only, the Act allows general meetings to be held remotely even if it is not possible for the (I)NPAs to ensure all members’ active participation in the deliberations or exercise of the right to ask questions. In such a case, the administrative body must explain and state the reasons why the (I)NPA does not have an electronic means of communication enabling this active participation of members. Such a measure is limited in time and only available until 30 June 2021. As from 1 July 2021, (I)NPAs will have to be fully compliant with this obligation.
The procedures and timing for participation in remote meetings must be clearly determined in the convocation notice.
If the (I)NPA has a website as referred to in Article 2:31 BCCA, those procedures will be made accessible on this website for those who have the right to participate in the general meeting.
Members of the general meeting’s bureau are, however, not entitled to participate by digital means as their physical participation is required.
The minutes of the meetings need to record any technical difficulties and incidents which might have interrupted the participation in or the exercise of voting rights during the meeting.
Electronic voting in advance – The Act also introduces the possibility to vote electronically “in advance”. The articles of association may permit any member to vote remotely electronically before the general meeting, in accordance with the articles of association. If the (I)NPA allows remote voting electronically before the general meeting, it must be able to verify the capacity and identity of the members in the manner determined by or pursuant to the articles of association.
Written resolutions - The Act has also ended a long-existing uncertainty for (I)NPAs, as it is now explicitly allowed for members of an (I)NPA to adopt unanimous written resolutions (Article 9:6/1 and Article 10:6/1 BCCA). Unanimous written resolutions may be adopted for all matters that fall within the remit of the general meeting, except for amendments to the articles of association. In that case, the convening formalities do not have to be completed. The members of the administrative body and, where appropriate, the statutory auditor, may be informed of those decisions at their request.
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