(International) Non-Profit Organizations New Belgian Act introducing the possibility of virtual and written GA
The COVID-19 crisis and the resulting government measures have placed companies, including (International) Non-Profit Organizations (hereafter “NPOs” and “INPOs”), in a particularly challenging situation since the beginning of 2020. As (large) gatherings inside became prohibited, (some) general assemblies meetings could no longer be held physically.
During the first lockdown, the Belgian Government had therefore temporarily softened the rules relating to the organization and holding of meetings of boards of directors and general assemblies meetings of associations by adopting the Royal Decree No. 4 dated 9 April 2020. The latter indeed allowed the postponement of general assemblies and/or the organization of these Assemblies via virtual means.
However, the Royal Decree provided for such possibilities only for a limited period of time ending on 30 June 2020, thus plunging the associations back into the difficulties triggered by the Covid-19 crisis.
On 20 December 2020, the Belgian government finally adopted a new law to amend the provisions of the Code of Companies and Associations and, inter alia, the rules governing the holding of general meetings of associations. The new text allows NPOs and INPOs to hold their GA meetings remotely using electronic means of communication on the one hand (1) and to organize the decision-making process by written resolutions of the Members on the other hand (2).
1.Participation in the general meeting by electronic means of communication
The new Act provides for the possibility for the Board members to grant the right for Members to participate in the GA meeting remotely. In this respect, (I)NPOs are not required to provide for such an option in their statutory provisions in order to avail themselves of it.
However, a number of strict requirements must be taken into account :
- the members of the bureau must always be physically present at the place where the general assembly is held
- the electronic means of communication must ensure verification of the quality and identity of the Members participating in the GA meeting (systems such as Zoom, Teams and Skype have been considered as compatible platforms to meet these requirements)
- the Members must have the opportunity to follow the discussions, and to exercise their right to vote, where appropriate
Moreover, the Act provides for leniency in situations where an (I)NPO does not have adequate electronic means to ensure the active participation of its Members and their ability to ask questions. In such circumstances, the Board of Directors shall give reasons for the lack of such means of communication in the convening notice. Note that this exception is only applicable until June 30, 2021.
A second innovation brought by the law of December 2020 is the ability for members of an (I)NPO to take all decisions that fall within the competences of the GA in writing. In the same way as the possibility of holding a GA meeting by electronic means of communication, the procedure for decision-making by means of written resolutions by the Members does not need to be established in the articles of association.
However, two limitations must be duly considered : such written resolutions must be taken unanimously (by unanimity of all Members) and they can never relate to the modification of the Articles of Association. There is little doubt that these restrictions will be major obstacles for (I)NPOs in organizing their future General Assembly meetings.
|Hélène van Rijckevorsel
 In this respect, we refer to our previous article available on our website: https://pierstone.com/brussels-exceptional-measures-for-the-functioning-of-corporate-bodies-during-the-covid-19-pandemic/.