Vía Periodista Digital.

A virtual meeting consists of the telematic celebration, with a bidirectional and real-time nature, of the meeting of shareholders or partners who are part of a company. Technological advancements…

A virtual board meeting consists of a telematic, bidirectional, and real-time meeting of shareholders or partners who are part of a company. Technological advances and movement restrictions caused by the Covid pandemic have accelerated the legal debate about the definitive implementation of virtual or, at least, hybrid meetings. For example, Directive 2007/36/EC already paved the way for shareholder participation via electronic means in Europe. It introduced virtual intervention in meetings through channels and/or electronic means, as long as the identity of the shareholders and the security of the communications were guaranteed. However, the said Directive did not specify how these meetings should be conducted.

Later, Directive 2017/828/EC amended Directive 2007/36/EC and reinforced the importance of adequately identifying shareholders when meetings employ remote communication means. It established the minimum requirements for shareholder identification, a detail not covered in Directive 2007/36/EC. In line with these criteria set out in Directive 2017/828/EC, Implementing Regulation 2018/1212/EC was enacted, setting the minimum requirements for the custodian of shareholder data and encouraging market participants to continue advancing in self-regulation.

In our domestic legislation, until the reform of the Capital Companies Act (LSC) by Law 5/2021, virtual participation in meetings was allowed, although there was always a broad debate around the admissibility of fully virtual meetings. Initially, Article 182 of the LSC allowed telematic attendance at the Shareholders’ Meeting, but it was only applicable to public limited companies. After the recent reform of the LSC, this criterion has been abolished, also allowing partners of limited companies to participate virtually in meetings.

When the pandemic was in its initial phase, RDL 8/2020 was introduced, which exceptionally allowed the holding of virtual sessions of the “administration and governance bodies” of capital companies and other entities. However, it was not contemplated in the statutes, which raised doubts about whether virtual meetings were possible. A few days later, RDL 11/2020 was published, which corrected the uncertainties generated by RDL 8/2020 and, above all, confirmed the possibility of holding virtual meetings.

Subsequently, RDL 34/2020 was enacted. This indicated that both public limited companies and limited companies could hold virtual meetings during 2021 without the need for statutory provision. Later, RDL 5/2021 modified letter a) of paragraph 1 of article 3 of RDL 34/2020, with special emphasis on ensuring the participation and identification of the partner in the holding of the virtual meeting.

Finally, the fourth final provision of Law 2/2021, of March 29, changes the regulation of RDL 8/2020, to include in it – without indicating where – the regulation that was already included in RDL 34/2020, as it had been modified by RDL 5/2021. Simply to note that this latest legal text does not add any relevant rules regarding the holding of the virtual meeting or the identification of the partner.

With the introduction of this Law 2/2021, it can be questioned that, despite the possible retroactivity of the rule, it does not affect the validity of the agreements held virtually in the 2020 and 2021 meetings, because no regulatory body prohibited it. In any case, according to Oliver & Lawyers, it can be inferred that the legislator’s objective has been to review the ethereal material that regulates the virtual meeting, and all he has achieved is to cause more legislative confusion.

Finally, it should be noted that the reform of the LSC by Law 5/2021 has modified some provisions