Electronic voting is an essential step in a general meeting. Once the partners have debated the resolutions on the agenda, they vote and each exercise their rights.
Voting can also be done electronically. In fact, in compliance with legal conditions, companies can, with the agreement of the partners, proceed with a dematerialized vote. Associates connect to an interface allowing them to vote next to each resolution. Such a legal evolution was welcomed during the health crisis, because it made it possible to make the holding of meetings and therefore the life of companies in general flourish. Indeed, ordinance No. 2020-321 of 25 March 2020 allowed the use of videoconferencing for collegial administrative, supervisory or management bodies, of all legal forms combined.
1. The electronic voting process
a. Common provisions (shareholders' meetings)
Shareholders have the possibility of participating in meetings by means of “videoconference or by electronic telecommunication means allowing their identification”, if the articles of association allow it (article L. 225-107, II, of the Commercial Code).
Therefore, a special site must be set up for shareholder voting. The use of this site cannot be imposed on them. That is why their prior agreement must have been obtained.
In addition, in the event of a failure in the videoconferencing system, the debates must be suspended and the telecommunication means used must allow the transmission, at a minimum, of the shareholders' votes (article 145-2 of the decree of 23 March 1967).
In addition, shareholders who vote electronically must identify themselves using an access code that was assigned to them prior to the session (for public limited companies, C.Com. article R. 225-98). Also, the company must set up a reliable identification process that guarantees the link between the signature and the voting right form (for public limited companies, C.com. article R. 225-77).
Finally, an attendance sheet must be signed by all participants.
b. Specific provisions (board of directors, management board and supervisory board)
In this area, the use of videoconferencing is authorized. However, at least once a year, the Council must meet in person to vote on the annual accounts and consolidated accounts.
With regard to voting, article L. 225-36-1 paragraph 1 of the Commercial Code provides for statutory freedom. Thus, the use of electronic voting must be mentioned there, both in the statutes and in the rules of procedure.
2. Authentication
In recent years, several recommendations have been adopted by the Commission Nationale de l'Informatique et des Libertés (CNIL). Such recommendations alone are not binding. It appears that the CNIL recommends double authentication of voters taking part in electronic voting.
- Under Deliberation No. 2019-053 of 25 April 2019: “To connect remotely or on site to the voting system, the voter must authenticate himself in accordance with this recommendation and using a means that meets the security objective corresponding to the level of risk identified for the vote. During this procedure, the voting server verifies the identity of the elector and that the elector is authorized to vote. In this case, he accesses the lists or candidates officially selected and in official order.”
- In accordance with decision no. 2017-012 of January 19, 2017: “It is clear from the exchanges that the CNIL has with data controllers as part of its advisory and control missions, both a priory and a posteriori, that the currently most widespread means of authentication in the context of controlling access to a digital resource is that combining an identifier with a password (secret). However, the Commission has always considered that other means offer more security, such as two-factor authentication or electronic certificates.”
3. The emargement
Deliberation No. 2010-371 of October 21, 2010 adopting a recommendation relating to the security of electronic voting systems adopted by the CNIL provides that: “The registration must take place as soon as the vote is validated so that another vote cannot take place based on the elements of authentication of the elector already used. The registration includes a timestamp. This list, for the purposes of checking attendance, as well as the vote counter should only be accessible to members of the polling station and authorized persons.”
In order to facilitate the organization of electronic votes during your general meetings, we provide you with a free downloadable template for an absentee ballot.
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