The reasons which, for the past year now, have led the legislator to intervene on several occasions with various regulatory measures are well known.
We have become familiar with a nation divided by colours, we have seen a succession of suspensions of activities, restrictions on working methods, use of leave and holidays for employees and suspensions of meetings “in the presence” of the corporate bodies. In the meantime, the practice of using the well-known digital platforms for the normal conduct of meetings has become consolidated.
While last year a regulatory intervention was desirable, aimed at the mere postponement of the ordinary deadline for the approval of the financial statements, which later materialized with the well-known Cura Italia Decree, this year we find ourselves wondering about the opportunity to introduce remote , in the regulation of the assemblies, as a possible model when fully operational. The introduction of “tele assemblies” in the discipline that regulates their functioning, in a definitive way, is certainly the result of a positive experience, widespread in common opinion.
The continuation of the epidemiological emergency from Covid-19 has prompted the legislator to return to the point. The D.L. 31.12.2020 no. 183 (so-called Mille Proroghe Decree 2021), containing the extension of terms in economic and financial matters, amending art. 106 of Legislative Decree 18/2020 (so-called Cura Italia Decree), confirmed the meeting methods adopted in 2020.
Following conversion into Law 26.02.2021 n. 21, which took place on 1st March, the Mille Proroghe Decree 2021, in art. 3, paragraph 6, provided that “Notwithstanding the provisions of articles 2364, second paragraph, and 2478-bis, of the Civil Code or the various statutory provisions, the ordinary shareholders’ meeting is called to approve the financial statements as at 31 December 2020 within one hundred and eighty days of the end of the financial year”. As a result of this extension, there are various consequences that will affect the meetings of the coming months, both with reference to the deadlines for approving the financial statements and with regard to the ways in which they can be held, but also on the renewal of corporate offices and on the appointment of the expiring control body, to be carried out at the time of approval of the financial statements.
On this last point, we briefly recall that the deadline originally established as 16.12.2019, for the appointment of the control body, internal or external, by the Srls and cooperative companies, established on 16.03.2019, had been further deferred at the date of approval of the financial statements for the 2021 financial year.
The set of exceptions, recognized by the original art. 106 of the Cura Italia Decree, which is now also extended to the 2020 financial statements, provides that:
1. The Shareholders’ Meetings for the approval of the 2020 financial statements can also be convened within 180 days of the end of the financial year (Article 106, paragraph 1)
The provision, as amended, derogating from the provisions of articles 2364, second paragraph, and 2478-bis of the Civil Code, or the various statutory provisions, renews the right to convene the ordinary shareholders’ meeting to approve the financial statements, within 180 days from the close of the financial year, in place of the original 120-day term.
The longer term of 180 days can be used by all companies, the “special needs” generally required to take advantage of the extension are not necessary. This faculty is justified by the objective situations of operational difficulties with which operators must deal daily, also taking into account the legislative changes that impact on the financial statements (just think, for example, of the possible interweaving on the discipline relating to the suspension of losses, the revaluation fixed assets and realignments).
However, taking advantage of the longer term remains an option, which could lead, for second calls, to the approval of the 2020 financial statements in July; however, there will be companies that will decide to call the shareholders’ meeting also in the ordinary terms, or on a date prior to 29 June 2021, if certain needs arise, such as for example the distribution of dividends.
2. The remote intervention and exercise of the right to vote can be used (Article 106, paragraphs 2, 3, 4, 5, 6)
With the notice convening ordinary or extraordinary shareholders’ meetings, all companies (joint-stock companies, limited partnerships, limited liability companies, cooperative societies and mutual insurance companies) have the option of providing, even in derogation from the various statutory provisions, the expression of the vote by electronic means or by correspondence and the participation in the meeting by means of telecommunication. There is also the right to hold the meeting by means of telecommunication, even exclusively, provided that they guarantee:
- the identification of the participants;
- their participation;
- the exercise of the right to vote;
without the necessary presence in the same place of the president, the secretary or the notary.
The decree also provides for specific rules for individual types of companies involved.
3. The possibility of appealing to the written decision of the shareholders of Srl, even if the statute does not provide for it (art. 106, paragraph 3)
Limited liability companies may allow the expression of the vote to take place using methods other than the shareholders’ meeting, or through written consultation or written consent, also in derogation of the provisions of art. 2479, fourth paragraph, of the Civil Code or the various statutory provisions.
These methods may also be used when:
- are not provided for in the deed of incorporation;
- the decision concerns amendments to the deed of incorporation, the carrying out of operations which involve a substantial modification of the corporate purpose or the rights of the shareholders, or the reduction of the capital by more than a third as a result of losses;
- is requested by one or more directors or a number of shareholders representing at least one third of the share capital.
4. Some companies (such as companies with listed shares) oblige the participation in the meeting exclusively through a designated Representative, even if the articles of association provide otherwise (Article 106, paragraph 4)
Companies with listed shares may provide that the participation in the meeting takes place through the designated representative, as provided for and governed by art. 135-undecies of the TUIF (Consolidated text of provisions on financial intermediation). The notice of call must provide that participation in the ordinary and extraordinary shareholders’ meetings takes place exclusively through the designated representative, with the possibility of conferring proxies or sub-proxies on the same. The proxy must contain voting instructions on all or some of the proposals on the agenda, and is conferred by signing the appropriate form. The electronic proxy document may also be signed electronically. Furthermore, the designated representative is required to communicate any conflict of interest which, on his own behalf or on behalf of third parties, he may have with respect to the proposed resolutions; further obligations of confidentiality, on the content of the voting instructions, must also be respected by its employees and auxiliaries. These provisions are also applicable to bondholders’ meetings for companies with listed shares.
The faculty to designate a designated representative was also extended by the Decree to companies admitted to trading on a multilateral trading system and to companies with shares widely distributed among the public.
People’s banks, cooperative credit banks, cooperative companies and mutual insurance companies may designate the designated representative for the shareholders’ meetings, even in derogation from the provisions of the law and the articles of association, where they set limits on the number of proxies that can be conferred on the same person. The deadline for granting the proxy is set for the second day before the date of the first call of the meeting.
For publicly controlled companies, as defined by law, the application of these provisions takes place within the financial and instrumental resources available under current legislation and does not involve new or greater charges for public finance.