(International) non-profit associations – New options for the organisation of general meetings
Following the temporary measures taken by the Belgian government to ensure the functioning of the Belgian entities during the first coronavirus lockdown, the law of 20 December 2020 has amended the Belgian Companies and Associations Code to provide for durable alternatives to the holding of physical general meetings of members.
Three key changes apply to (international) non-profit associations ((I)NPA(s)) and appropriately clarify the former legal uncertainty.
Organisation of remote general meetings
The board of directors of an (I)NPA can now provide for the possibility for the members to participate remotely in the general meeting through an “electronic means of communication”. No specific authorisation in the articles of association of the (I)NPA is required for this purpose.
The electronic means of communication must meet the following (minimum) conditions:
- To enable the (I)NPA to control the capacity and identity of the members who participate remotely;
- To allow the members to attend the discussions in a direct, simultaneous and continuous manner and to vote on all items on the agenda of the general meeting;
- To enable the members to participate in the deliberations of the general meeting and to ask questions. However, until 30 June 2021, the board of directors can justify that the (I)NPA has no means of communication complying with this third condition.
The board of directors can freely determine the most appropriate means of communication, taking among others into account the number of members of the (I)NPA. If this number is limited, a telephone or video conference is likely to meet the abovementioned criteria. The implementation of a more elaborate system may however be necessary for (I)NPAs with a large number of members.
The convening notices of the general meeting will have to clearly and specifically describe the procedures implemented for the remote participation. If the (I)NPA has a website, these procedures must also be made available on its website to the persons entitled to participate in the general meeting.
A regrettable exception applies to the members of the bureau of the general meeting who are not allowed to participate remotely in the general meeting. The unconvincing justification put forward in the parliamentary preparatory works is that the members of the bureau must sign the minutes of the general meeting and are responsible for the valid composition of the remote meeting.
Adoption of unanimous written resolutions
In the same way as already provided for shareholders of companies, the law of 20 December 2020 has introduced the possibility for the members of an (I)NPA to take unanimous written resolutions without having to hold a (physical or remote) general meeting. Again, no specific authorisation in the articles of association is required. This decision-making procedure can however not be used to amend the articles of association of the (I)NPA.
All members of the (I)NPA must adopt the written resolutions unanimously. If one or more members do not approve the resolutions, the latter will be deemed not to have been taken. The articles of association cannot provide for more flexible majority requirements.
If the members decide to use such a written decision-making procedure, the convening formalities do not have to be fulfilled (with respect to the members, the directors and, as the case may be, the statutory auditor). The directors and the statutory auditor (if any) may request to consult the written resolutions after their adoption.
Electronic voting before the general meeting
The articles of association can authorise the members of the (I)NPA to cast their votes remotely and electronically before the holding of the general meeting. Contrary to the first two options above, a specific authorisation in the articles of association is required to implement this procedure.
The articles of association do not only have to set out (i) the possibility to vote electronically before the general meeting but also (ii) the conditions for such electronic voting and (iii) how the (I)NPA will control the capacity and identity of the members who choose to vote electronically in advance.
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