The current pandemic caused by the Covid-19 virus and the strict rules dictated by the Italian Government to contain the contagion have severely limited physical contact between people and consequently made it impossible for people to gather and make it difficult to circulate in the national territory, except for proven primary needs. In order to allow for a regular and valid holding of company meetings, it is necessary to use computerized communication systems, such as Skype, WhatsApp, and so on.
The current situation in Italy has led to the need to use the new remote communication systems to ensure the regular and orderly running of company meetings (such as General Meetings, Board of Directors Meetings, etc.), even at a distance, in compliance with company regulations. This is not a novelty since Article 2370, paragraph 4, of the Italian Civil Code already provides that the by-laws may allow the participation in the shareholders' meeting by means of telecommunication. Even if at the moment, the participation in the meeting at distance does not involve some subjects, but all or almost all participants due to well-known impediments.
In the case of private limited companies, the Triveneto Notarial Board of Notaries with recommendation H.B.39 maintains that it must always be considered possible to intervene in the shareholders' meeting by means of telecommunication communication, even if there is no provision in the by-laws, provided that the principles of the collegial method are concretely respected and that the telecommunication communication to be used are provided for in the notice of call in such a way as to ensure compliance with the principle of equal treatment of shareholders.
It should be added that even the indication in the statute of the means of telecommunication to be used to intervene at a distance would not be indispensable according to the Council of Notaries of the Triveneto (guideline no. H.B.1) when all the technical measures are adopted that guarantee the valid conduct of the meeting, as well as the genuineness of the origin of the interventions of the shareholders, in other words when these instruments allow to carry out all the required checks and to carry out those activities that must result from the minutes pursuant to art. 2375 of the Civil Code.
The main issues for the regular and valid holding of the meeting with means of telecommunication concern: notice of convocation; the identification of the participants and the capital represented by each member; the discussion and the issue of any declarations of the members present; the vote with the identification of the members in favor, abstaining and dissenting; the minutes of the secretary or notary.
Skype and other digital platforms for meetings are commonly used for meetings of companies in accordance with Article 2370 of the Italian Civil Code and present the same legal issues as those described below for meetings via the WhatsApp application
The WhatsApp instant messaging computer application deserves special attention mainly because of its popularity and ease of use, as well as its free of charge. WhatsApp is suitable for smartphones, tablets, PCs, etc., which, in these times of easy contagion, is better suited to distance company meetings in accordance with art. 2370, paragraph 4, Civil Code, as through a fixed data connection or home Wi-Fi or a cellular network can send written messages, voice, photos, videos, documents, and their geographical location to individuals or a large number of people (in Group) identified on the basis of the mobile phone number. We can define the meetings held through WhatsApp as “Instant Message Conferencing” where the meeting can be held online using instant messaging software.
Some few operational indicators for conducting company meetings with WhatsApp.
With WhatsApp, the maximum number of attendees is 256 and interventions can be made with written or voice messages communicated in a single “WhatsApp Group”.
WhatsApp Group Creation and Notice of Meeting
After downloading the free application, WhatsApp associates a mobile phone number (presumably the company's) to it and creates a WhatsApp group, naming it, for example, “Fontana Ros Partners S.r.l or S.p.A.”, in the possible description, possibly indicating the type of meeting, date and time, e.g. Extraordinary meeting on 4th April 2020, at 3pm. The group created e.g. Fontana Ros Partners S.r.l or S.p.A. generates the invitation link to allow access to the meeting of participants, which must be communicated:
- to the president of the future meeting (who will be WhatsApp group director);
- to the board of statutory auditors;
- the other persons entitled to attend (e.g., the joint representative of the bondholders);
- to the shareholders, who will be notified in the notice of call of the shareholders with the invitation link;
- to the public notary.
In order to prevent participants from sending messages to the WhatsApp group before the beginning of the meeting, the group leader may temporarily exclude participants from the messaging.
For any further questions or clarification on these issues please do not hesitate to contacting me.
Avv. RA Dr. Massimo Fontana Ros
M +39 331 7116211