Although the exceptional and derogatory regime resulting from the Ordonnance n°2020-321 of March 25, 2020 had come to determine the new rules applicable to the general meetings of shareholders convened and held during the period of health crisis related to Covid-19, several comments had been made regarding its lack of precision and its provisions subject to multiple interpretations.
This Ordonnance, which remained in force until November 30, 2020, was finally extended and supplemented by the Ordonnance n°2020-1497 of December 2, 2020, which was published in the Official Journal the following day. A period of 2 days therefore elapsed between the disappearance of the first ordinance and the entry into force of the second one extending it, creating a temporary legal void, theoretically preventing companies from being able to hold their general meetings according to the exceptional rules of the derogatory text. However, many shareholders’ meetings of listed companies had, in anticipation of a possible delay, been scheduled to be held later in December, thus ensuring the publication, in the meantime, of the appropriate extension order.
In essence, this Ordonnance n°2020-1497 of December 2, 2020 broadens its application to a wider range of companies. In fact, as far as the absence of nullity for default in convening shareholders by mail is concerned, only listed companies could previously benefit from this measure, thereby excluding unlisted companies which, however, may be composed of several dozen shareholders and therefore may require the application of such a provision. From now on, this exemption from nullity concerns all legal persons, without distinction according to whether the securities are admitted to trading or not.
Moreover, article 4 of the Ordonnance of March 25, 2020, adapting the rules of meeting and deliberation of general meetings is completed. Accordingly, the decision to hold a meeting in the physical presence of the shareholders must be considered for each company taken individually, considering a factual assessment of the situation. For example, a company composed of few shareholders could convene a general meeting in the physical presence of the shareholders, provided that barrier gestures restricting travel limitations are respected.
Further measures have been clarified by this Ordonnance, both regarding the terms of written consultation and vote by mail.
The derogatory regime will remain in force until April 1, 2021, unless the French government decides to extend it further.