COVID-19 measures for shareholders’ assemblies
by Marina Dumitrescu and Teodora Tabără
In the context of the social distance generated by the spread of the new type of coronavirus SARS-Cov-2, as well as of the diseases caused by it, the Government of Romania issued the Emergency Ordinance no. 62 of May 7, 2020 for the adoption of measures in the field of companies, in order to carry out the meetings of the statutory bodies, as published in the Official Gazette no. 372 of May 8, 2020. The measures are applicable for assemblies held during the state of emergency, the assemblies held after the state of emergency ends but convened during the state of emergency, and the assemblies convened in the first 2 months after the cessation of the state of emergency. However, the provisions of the ordinance are not applicable to the companies under the incidence of Law no. 24/2017 on issuers of financial instruments and market operations.
According to the Companies Law no. 31/1990, within 5 months from the end of each financial year, the companies have the obligation to convene the ordinary general assemblies of shareholders to decide on some essential aspects for their operation, such as approving the annual financial statements and establishing the revenue and expenditure budget, the management of the board of directors and, where appropriate, the election or removal of members of the board of directors or supervisory board, etc.
Pursuant to the regulations, the Emergency Ordinance no. 62 facilitates the convocation and meeting of any general assembly of shareholders of companies regulated by the Companies Law no. 31/1990 as follows: “During the state of emergency, the general assemblies of the shareholders of the companies regulated by the Companies Law no. 31/1990, republished, with the subsequent modifications and completions, may be convened either by the modalities provided in art. 117 para. (3) of the Companies Law no. 31/1990, republished, with subsequent amendments and completions, or by any means of remote communication, which ensures the transmission of the text, provided that each shareholder communicates in writing to the administrators/ board of directors/ directorate the postal address or, as the case may be, the e-mail, fax number or other contact details at which he can receive correspondence from the company. The addresses of shareholders registered in the register of shareholders may also be used for this purpose”.
The ways the competent statutory body may convene the assembly although they were not provided in the articles of incorporation of the company are the following: “by registered letter, by courier, by letter sent electronically, with attached or logically associated extended electronic signature, if it holds, by fax or other means of distance communication that ensures the transmission of the text. The convocation is also published on the company’s website if the company has its own website, as well as, if applicable, on a website addressed to certain types of companies and will be sent by e-mail if the addresses of the shareholders are known by the company”.
In the case of general assemblies held exclusively by correspondence, according to the emergency ordinance, the rules involving the physical presence of shareholders provided in art. 129, art. 131 para. (1) and (2) and art. 195 para. (1) of the Companies Law no. 31/1990 are not applicable. In this case, the directors and members of the board of directors or, as the case may be, the members of the board of directors and those of the supervisory board or the director or directors are not bound by the obligation to participate in the general assembly of shareholders.
Shareholders may communicate the vote by mail in the manner indicated in the notice, namely by registered letter, postal or courier services or by letter sent electronically, having incorporated, attached or logically associated extended electronic signature so that the vote is received by the company until the date of the assembly.
At the same time, the regulated aspects bring into discussion the extension of the term for the shareholders’ meeting provided in art. 111 para. (1) of the Companies Law no. 31/1990, until July 31, 2020.
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