On September 23, 2020, the Luxembourg parliament adopted a new COVID-19-related law relating to measures on the holding of meetings in companies and other legal entities (the New Law). The New Law renews the temporary measures first put in place pursuant to the Grand Ducal Regulation of March 20, 2020, repealed by the law of June 20, 2020, itself superseded by the New Law. The New Law applies until year-end.
The New Law allows for meetings of corporate bodies to take place without the physical presence of the participants, as well as for the adoption of circular board resolutions, irrespective of whether or not these measures are provided for in the articles of association of the company. It should ensure maximum business continuity during the pandemic, with due respect for social distancing recommendations and the continued safety of all participants.
What are the measures?
According to the New Law, general meetings of shareholders and bondholders can be held without a physical meeting and shareholders and bondholders, as well as other participants, can be compelled to partake in the meeting and exercise their rights in one or several of the following manners:
- A remote vote in writing or in electronic form (allowing for the voter to be properly identified), provided that the full text of the resolutions to be adopted be published or otherwise communicated to the participants in advance.
- A video conference or any other means of telecommunication allowing for the participants to be properly identified.
Shareholders, bondholders and other participants may also participate in the meeting and exercise their rights through a proxyholder designated by the company. If the company is subject to the rules of the law of May 24, 2011 on the rights of shareholders of listed companies, the participants may appoint a proxyholder of their own choosing.
Meetings of a company’s other corporate bodies (in particular its board) can also be held without a physical meeting by way of a video conference or any other means of telecommunication allowing for the participants to be properly identified. Alternatively, decisions can be adopted through circular resolutions, whether or not allowed, or even prohibited, by the articles of association.
In addition to companies, the New Law also applies to certain other entities such as non-profit organisations.
Will the measures affect the number and frequency of meetings, convening formalities, or quorum and majority requirements pursuant to the company law or a company’s articles of association?
No. The flexibility measures are limited to those enumerated by the New Law. Therefore, corporate bodies of a company must ensure that they continue to respect the rules set out in the company law and the company’s articles of association regarding the number and frequency of meetings, any convening formalities as well any quorum and majority requirements.
The New Law specifies that participants who partake in such meetings pursuant to its special rules will be deemed present for the computation of any quorum and majority requirements.
Does the New Law provide for an extension of legal deadlines applicable to the holding of the annual general meeting of shareholders or the filing of a company’s accounts or reports?
No. These matters are governed by the law of May 22, 2020 on the extension of deadlines for the filing of annual accounts, consolidated accounts and reports relating thereto during the state of crisis.
When do the measures expire?
The New Law came into force on October 1, 2020 and will be effective until December 31, 2020.