Temporary Act COVID-19 Justice & Security

April 24, 2020 – On 24 April 2020, the ‘Temporary Act COVID-19 Justice & Security (35.434)’ came into force. The Act provides flexibility to legal entities to mitigate restrictions on their decision-making process resulting from the measures to prevent the spread of COVID-19. These provisions will be available retroactively as per 16 March 2020 and are currently proposed to expire per 1 September 2020.

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Expertise Corporate notarial services, Ondernemingsrecht
Reading time 1 min reading time

This alert summarises the most noteworthy provisions, to the extent applicable to legal entities:

  • The management board may extend the term for holding the annual general meeting up to four months. This allows the board to postpone this meeting and thereby the adoption of the annual accounts solely, without a resolution of the general meeting.
  • The management board may determine to withhold members / shareholders the possibility to physically attend the general meeting, provided that:
    • the meeting can be attended electronically (audio/video stream); and
    • members / shareholders are given the opportunity to raise questions on all matters on the agenda in advance of the meeting, either in writing or electronically.

The use of this authority must be stated in the notice to convene the meeting. Up to 48 hours prior to the meeting, the board may change the manner of conducting the meeting or the location of the meeting set out in any earlier convocation.

  • The management board may determine that voting rights can only be exercised electronically.
  • The management board may determine to extend the period for drawing up the annual accounts up to four months (in the case of associations and cooperatives) or five months (in the case of N.V.’s and B.V.’s).
  • Statutory provisions dictating physical meetings of the management board, the supervisory board and/or the general meeting and statutory provisions subjecting to approval or otherwise limiting the management board’s exercise of its powers under the provisions of the Act are (at least temporarily) set aside.
  • In bankruptcy, earlier failure to timely publish annual accounts due to COVID – 19 outbreak will not give rise to the legal presumption of improper performance of management board duties.

The provisions summarized above provide the management board tools to furthermore ensure proper governance compliance during the COVID-19 outbreak. Furthermore, the Act offers an extension of publication terms. It nonetheless remains important to meticulously prepare intended decision-making and to communicate transparently with shareholders and/or members, adequately considering the challenges posed by the current timeframe. Convocation documentation, chairman’s script and minutes in particular will likely require specific attention. The corporate law notaries of Lexence are gladly available to provide guidance on these matters.