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1. Electronic voting for unlisted capital companies
Video conference, online voting and shareholder identification
Since the NRE law of 15 May 2001,article L.225-107, II, of the Commercial Code provides for the possibility for shareholders to participate in meetings by”videoconference or by electronic telecommunication means allowing their identification”, if the statutes so provide. In addition, a special site must be set up for electronic shareholder voting. The use of this site cannot be imposed on them. (for the SA, art. R.225-61, art. R.225-61-1 of the commercial code; for the SARL, art. R. 223-20, para. 2 ibid.).
Video conferencing allows shareholders to participate in debates and vote online as if they were physically present. Securities must be put in place. In the event of a failure of the videoconferencing system, the debates must be suspended (For the SARL, art. R. 223-20-1 of the Commercial Code, Dec. 1967, art. 145-2, the”Deliberations are broadcast continuously”).
More importantly, shareholders who vote electronically must identify themselves using an access code that was assigned to them prior to the session (for the SA, art. R. 225-98 of the commercial code). Also, the company must set up a reliable identification process to ensure the link between the signature and the voting right form (for the SA, art. R. 225-77, ibid). An electronic signature does the trick perfectly. Discover the benefits of the advanced electronic signature on Axiocap.
To learn more about the subject, read our summary on the legal regime of electronic signatures.
Statutory formalities to be completed
- For postal voting
Article L. 225-107, I, of the Commercial Code provides for the possibility of using postal voting, with the proposal of a standard model atArticle R. 225-76 of the same code. The statutes cannot exclude this voting method: any stipulation to the contrary will be deemed unwritten.
- For video conferencing
The ordinance of 4 May 2017 allows the statutes to provide for the exclusive use of videoconferencing, for all meetings (for the SARL, art. L. 223-27 of the Commercial Code, for the SA, art. P. 225-103-1 ibid.). One or more shareholders representing at least 5% of the capital may oppose it.
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2. Online voting for other assemblies
Board of Directors and Supervisory Board Meetings
These meetings may be held by videoconference or any other electronic means of telecommunication, whether on the basis of the statutes or a provision of the rules of procedure (art. L. 225-37, para. 3 and L. 225-82, para. 3 of the commercial code). The technical means accepted as well as the practical methods of application are identical to the regulations of assemblies (art. R. 225-21 and NO. 225-23, ibid. for the board of directors; art. R. 225-48 and NO. 225-50 ibid. for the supervisory board).
However, there is a difference with assemblies: a dedicated website does not have to be set up. Consequently, while meetings of the board of directors or the supervisory board can be dematerialized, On the other hand, it is completely forbidden to validate one's vote electronically, this being explained by the limited number of members of the Board, unlike shareholder meetings. As for the management board, Article L. 225-64, paragraph 4 of the Commercial Code leaves the statutes free to set the procedures for deliberations and decision-making within it. The use of digital means is therefore authorized if the shareholders so decide. To find out more, find our legal summary on voting at assemblies and meetings.
Bondholders' meetings
In general, the same rules apply for this type of meeting: the use of videoconferencing and online voting is possible (for LLCs, art. L. 223-27 and R. 223-20 of the commercial code; for SA, articles L. 228-61, paragraph 5 and R. 228-68 of the same code).
Save time and increase efficiency by discovering the Axiocap solution for meetings and online voting.
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3. Temporary provisions taken as a result of the Covid-19 epidemic
One Order dated 25 March 2020 adjusted the existing rules to deal with the blockages of meetings. The ordinance of 13 May 2020 and several decrees amended this ordinance (decree of 10 April 2020, 2 December and 18 December 2020).
This ordinance was intended to organize the electronic voting procedures of the various assemblies. As an exception, what was not allowed by law was now possible - in particular with regard to the holding of the various assemblies - and this until September 30, 2021.
However, since October 1, 2021 and in the absence of extension measures, special company law has been applied again. It is therefore appropriate to refer to the law applicable to each corporate form to know the obligations relating to electronic voting at general meetings.
To find out more, read our article on general meetings and Covid-19.
