More than a month and a half after the state of emergency has been declared, by the Government Emergency Ordinance no. 62/2020 (“GEO 62/2020”) were adopted a series of measures to facilitate the decision-making process within the companies regulated by law no. 31/1990 on companies (“Companies Law”) in the context of the social distance measures imposed by the Covid-19 pandemic.

The enactment by the Romanian Government of several provisions meant to solve the blockage appeared at the level of management bodies were long awaited mainly because during this period there was an effervescence of decisions due to companies’ attempt to adapt and respond to the new economic reality.

Mention should be made that GEO 62/2020 does not restrict the right of the companies’ management bodies to meet physically at the company’s headquarters or, if the articles of incorporation offer such possibility, in another place indicated by the convening notice. GEO 62/2020 provides that in those cases when the holding of general meetings of shareholders cannot take place by means of distance communication and it will be decided for the meeting to be attended by physical presence, the measures imposed by the authorities to prevent Covid-19 infection must be observed. Only by exception, if the general meeting of shareholders could not be held neither by means of distance communication nor at the company’s headquarters in compliance with measures to prevent infection with Covid-19, the general meeting of shareholders may be revoked.

Herein below are presented the measures adopted and their impact over the companies activity.

1. Application period for the measures provided under GEO 62/2020

The new methods of holding the general meetings by correspondence or by electronic means are applicable to:

• the general meetings of the shareholders that have been convened prior to the entry into force of GEO 26/2020, but the meeting was established for a date subsequent to the establishment of the state of emergency. It should be mentioned that should the convocation has already been made, the competent statutory body has the possibility to inform the shareholders, within at least 5 days before the date set for the meeting, about the new manner of holding the meeting and the methods to exercise the right to vote, respectively by correspondence or electronic means;
• general meetings convened during the state of emergency, but which are hold after the cessation of the state of emergency;
• general meetings convened and held in the first 2 months after the cessation of the state of emergency.

If before the entry into force of GEO 26/2020, had been held general meetings making use, with the consent of all shareholders, of the means of communication provided by this normative act, the decisions adopted within these meetings cannot be canceled for reasons related to non-compliance with the methods of conducting and exercising the voting right.

2. Conveying shareholders’ meeting

During the state of emergency and also for 2 months after the state of emergency ceases, the general meetings of shareholders may be convened, either in the classic ways already provided by the Companies Law or by any means of distance communication, which ensure transmission of the text, provided that each shareholder communicates / has communicated in writing to the administrators / board of directors / directorate the postal address or, as the case may be, the e-mail address, fax number or other coordinates at which he can receive correspondence with the company. The addresses of the shareholders registered in the register of shareholders can also be used for this purpose.

The conveying notice must also be published on the company’s website (if such exists) and must be sent by e-mail to shareholders if the e-mail addresses of the shareholders are known.

Choosing the way of the convening is exclusively the attribute of the statutory body to which the constitutive act granted the competence to convene the general assembly.  A decision regarding the convening modality has to be issued, such being later mentioned in the minutes of the general assembly.

3. Content of the conveying notice

Considering the new possibilities of holding general meetings through electronic means, GEO 62/2020 introduces new requirements regarding the content of the convening notice.

Thus, in addition to the information provided under the Companies Law (i.e. the place and date of the meeting, the agenda), the convening notice must contain:

• forms assuring the participation,
• the manner the general assembly will be hold;
• the way the shareholders will have access to the general meeting;
• where the power of attorney must be sent, and
• the ways the right to vote will be exercised.

4. Documents attached to the conveying notice

Unlike the provisions of the Companies Law, GEO 62/2020 imposes new conditions regarding the content of the convocation in order to ensure a correct, complete and efficient information of shareholders.

Therefore, in addition to the documents provided by the Companies Law (i.e. annual financial statements, the annual report of the board of directors, the report of the board of directors and the supervisory board, the proposal on the distribution of dividends and the situation on dividends partially distributed during a fiscal year) shall be also provided to the shareholders other information or documents regarding the matters included on the agenda of the general meeting.

5. Requirements for holding the general meeting by correspondence (postal mail)

Should the general meeting be held exclusively by correspondence, the physical presence of the shareholders is not necessary and the members of the management bodies do not have the obligation to participate in the general meeting.

The votes will be sent in the manner indicated in the convening notice, respectively by registered letter, postal or courier services or by letter sent electronically, having incorporated, attached or logically associated the extended electronic signature.

The minutes of the general meeting shall be drafted up and signed by the chairman of the board of directors or the director with powers of representation and only if possible by a technical secretary appointed from among the company’s employees. The director will also sign the decision of the general meeting by handwritten signature or by an extended electronic signature.

6. Requirements for holding the general meeting by electronic means

If the competent statutory body decides to hold the general meeting by electronic means, must be taken measures to ensure communication but also:

• the compatibility with the most used fixed or mobile access technologies, with as many operating systems as possible and the connection with public fixed or mobile electronic communications networks;
• identification of participants and their effective participation in the meeting;
• continuous and real-time transmission of the general meeting, its registration and archiving;
• real-time bidirectional communication, so that the shareholders may speak during the general meeting;
• expressing the vote during the general meeting and its registration;
• subsequent verification of the way in which it was voted.

The minutes of the general meeting shall be drafted up and signed by the chairman of the board of directors or the director with powers of representation and only if possible by a technical secretary appointed from among the company’s employees. The director will also sign the decision of the general meeting by handwritten signature or by an extended electronic signature.

7. Other provisions contained with GEO 62/2020

• Prolongation for the term of the annual general meeting until 31.07.2020, thus being able to exceed the term of 5 (five) months as of the end of the financial year established by the Companies Law.
• During the state of emergency, the participation in the meetings of the collective administration /supervision bodies and / or of the directorate can be done also through the means of distance communication, regardless of the object of the decision.

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