COVID-19 Spain / Meetings of companies and other legal entities governing and managing bodies.

01/05/2020
Meetings of companies and other legal entities governing and managing bodies.

The Spanish government response to the impact of COVID-19 on the field of Company Law. Royal Decree Law 8/2020 of March 17th, on extraordinary and urgent measures to address the economic and social impact of COVID-19. Meetings of companies and other legal entities governing and managing bodies.

 

             " The state of alarm was declared in Spain by Royal Decree 463/ 2020 of March 14th being subsequently prorogued in two occasions since. At the time of writing these lines a third prorogue of the state of alarm is foreseeable (this would be until May 9th). 

Out of Royal Decree Law 8/2020 of March 17th, as amended by Royal Decree Law 11/ 2020 of March 31st, a series of extraordinary measures applicable to the functioning of the governing bodies of Private Law legal entities were established (RDL 8/2020 hereinafter, https://www.boe.es/buscar/act.php?id=BOE-A-2020-3824).

 For the duration of the state of alarm, art. 40.1 RDL 8/2020 acknowledges the full validity and effectiveness of those non- face to face meetings of legal entities governing and management bodies where certain prerequisites are met. This will also be the case where no provisions on this regard are foreseen in the legal entities articles of association or in their acts of incorporation. To this effect the authorization provided for in the RDL 8/ 2020 being sufficient. Thereto governing and management bodies of commercial and civil companies, associations, cooperatives and foundations may be held on videoconference or through multiple telephone conference during the state of alarm period.

 Nevertheless, in the holding of these non- face to face meetings certain requirements must be complied with. All the members of the governing or managing body must have access to the technical means for the meeting to be hold and it is necessary that the secretary has the means to have their identities verified. In addition, a formal duty is set since the secretary must express the above circumstances in the minutes of the meeting. This last document must be sent to the meeting attendees by e-mail.

 As long as the aforementioned requirements are met, the meetings of delegated committees and other obligatory or voluntary committees that the beneficiary legal entities may have constituted may also be held non- face to face.

 On its part, art. 40.2 of RDL 8/ 2020 foresees that during the state of alarm the resolutions of governing and administrative bodies of companies and other legal entities may be passed through a written vote casting procedure without having to hold a meeting. The decision to implement this procedure for the passing of decisions belongs to the president of the governing or managing body but will also implemented at the request of at least two members of the body.

 This last procedure must stay to the requirements out of art. 100 et seq. of the Reglamento del Registro Mercantil (Commercial Registry Regulations, https://www.boe.es/buscar/act.php?id=BOE-A-1996-17533). This provision applies regardless of whether or not the concerned legal entity is not a business company. Minutes must record, among other items, the name of the participants, the votes that were cast and the resolutions passed."

Ignacio Moralejo

Coordinador de DADE

22nd April 2020