- The Temporary COVID-19 Emergency Act expired on 1 February 2023;
- At present, virtual general meetings are not possible, except where the company’s articles of association provide for this option; and
- A legislative proposal is currently being prepared to provide a permanent legal basis for virtual general meetings.
COVID-19 Emergency Act
The Dutch Temporary COVID-19 Emergency Act Justice and Security gave legal entities the possibility, as of 24 April 2020, to hold virtual general meetings also when the law or the company’s articles of association normally did not allow for this. For instance, the executive board was authorised to determine that voting rights could be exercised via an electronic means of communication and votes that were cast prior to the general meeting via an electronic means of communication were equated with votes that were cast during the meeting.
The temporary provisions pursuant to the temporary COVID-19 Emergency Act expired on 1 February 2023. The Minister of Legal Protection for the Netherlands Frank Weerwind announced this in a letter to the Dutch House of Representatives on 5 December 2022. As a consequence, in all cases in which the articles of association do not provide for virtual meetings, meetings have to be held physically again.
At present, a legislative proposal is being prepared in the Netherlands to enable virtual general meetings for private-law legal entities (Wet digitale algemene vergadering privaatrechtelijke rechtspersonen). The objective of the legislative proposal is to enable and regulate the use of electronic means of communication in connection with general meetings of private-law legal entities. In addition, the proposal also aims to make it simpler to convene general meetings electronically.
Articles of Association must provide for this option
Contrary to the Emergency Act, the Dutch legislative proposal regarding virtual general meetings does not automatically make it possible to hold virtual general meetings if the company’s articles of association do not provide for this option. The articles of association of most companies do not provide for this possibility, therefore most companies will have to first amend their articles of association before virtual general meetings can be held in accordance with this legislative proposal.
According to the legislative proposal, a virtual general meeting must be, as much as possible, a reflection of a physical meeting and must meet the same requirements, including that participants must be able to participate fully in the virtual meeting:
- Participants must be able to follow the meeting directly via audio and video;
- Participants must be able to participate in the discussions via audio-visual means of communication (therefore not only as listeners); and
- It has to be possible to identify shareholders who are participating electronically.
The internet consultation in connection with the legislative proposal has ended now. We will, of course, keep you informed with regard to relevant developments. Until then, please feel free to contact Govin via Bob Koster (firstname.lastname@example.org) or AMS Advocaten if you have any questions regarding virtual or physical general meetings.