The COVID-19 Company Law Act provides that for the duration of measures taken to prevent the spread of COVID-19, meetings of shareholders and board members of a corporation, a partnership, a cooperative, a private foundation or association, a mutual insurance association or a small insurance company may be held without the physical presence of the participants in accordance with the Regulation.
The Federal Minister of Justice shall, by ordinance, lay down more detailed rules for the conduct of the meetings which ensure a comparable quality of decision-making.
Annual general meetings of public limited companies must be held within the first eight months of the financial year in accordance with § 104 AktG. For the year 2020, the deadline is extended by the 2nd COVID-19 Act, so that the ordinary general meeting of a public limited company must be held within the first twelve months of the financial year.
With the COVID-19 regulation under corporate law, the requirements for "virtual assemblies" are specified in more detail. The ordinance came into force retroactively as of 22 March 2020 and expires at the end of 31 December 2020.
Admissibility of virtual meetings
A virtual meeting may be held if it is possible to participate in the meeting from any location by means of a two-way audio and optical connection in real time. Each participant must be able to speak and vote. If some, but not more than half, of the participants do not have the technical means for an acoustic and optical connection to the virtual meeting or cannot or do not want to use these means, it is also sufficient if the participants concerned are only acoustically connected to the meeting.
The decision on whether to hold a virtual meeting and on the connection technology to be used is to be taken by the institution or member of the institution convening the meeting. In doing so, both the interests of the company and the interests of the participants shall be taken into account in an appropriate manner. The notice convening the virtual meeting shall specify the organisational and technical requirements for participation in the virtual meeting.
The identity of a participant in a virtual meeting must be checked separately if there is reason to doubt the identity of a participant.
Special provisions for the general meeting of a public limited company
Due to the higher number of participants, it is sufficient in the case of general meetings of public limited companies if the individual shareholder can only follow the course of the meeting from any location by means of an acoustic and optical connection in real time. Nevertheless, it must be ensured that participants are otherwise enabled to make requests to speak and participate in votes during the meeting.
In addition to the virtual holding of the Annual General Meeting, it is also possible to allow the Annual General Meeting to be broadcast and/or to vote by letter even without the corresponding provision in the Articles of Association.
If the information on the organizational and technical requirements for participation in the virtual meeting is not yet included in the notice convening the Annual General Meeting, it is sufficient if this information is provided from the 21st day before the Annual General Meeting and that this is announced in the notice.
If a stock corporation has already published the invitation to its Annual General Meeting before the regulation was announced, i.e. before April 8, 2020, it is sufficient, in deviation from this, if the information on the organizational and technical requirements for participation in the virtual meeting is provided as of the 14th day before the Annual General Meeting. If this information is not made available on the company's website, it must be sent to the shareholders without delay, even without a corresponding request.
Voting by proxy
In the case of the broadcast of an annual general meeting of a listed company or a company with more than 50 shareholders, it may also be provided that the filing of a motion for resolution, the casting of votes and the raising of an objection in the virtual general meeting may only be carried out by a special proxy. The company must propose at least four suitable and independent persons as special proxies, at least two of whom must be lawyers or notaries. The costs of the special proxies shall be borne by the Company.
Due to our expertise in corporate law, we are happy to act as your proxy.
Special provision for the general assembly of a cooperative or association
Special provisions are also provided for the general assembly of a cooperative or association. It should be emphasised that here too it is sufficient for the individual member to be able to follow the course of the meeting from any location by means of an acoustic and optical connection in real time, but it must be ensured that members are otherwise enabled to make requests to speak and take part in votes during the meeting.
If it is not possible or expedient to conduct the General Assembly virtually, the Board of Directors - with the consent of the Supervisory Board, if any - may order a written vote of the members on matters requiring a decision by the General Assembly, even if this is not provided for in the Articles of Association.
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