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OCTOBER 28, 2020
Selim KNANI: Participation in boards of directors by videoconference
Some directors are directors resident abroad. As it is difficult for these directors to be present at all meetings of the board of directors, particularly in the current context of the international and unprecedented health crisis of COVID-19, the problem arose of knowing to what extent their participation by videoconference may be admitted and if this mode of participation does not risk invalidating the meetings as well as the decisions of the board of directors thus assembled.
Teletransmission refers to the action of transmitting a signal or information remotely. Teletransmission includes telephone conference, Internet, videoconferencing or other new means of communication.
With particular regard to videoconferencing, it is a means allowing, in addition to the transmission of speech and graphic documents, the transmission of animated images of distant participants.
In Tunisian law, the question is not regulated.
Article 199 of the commercial companies code simply provides that the board of directors only validly deliberates if at least half of its members are present.
In the same sense, the last paragraph of this article provides that decisions are taken by the majority of members present or represented, unless the statutes provide for a greater majority. strong.
Thus, the law imposes a quorum for the validity of the deliberations and decisions of the board of directors in the limited company, without specifying or imposing a particular form on the presence of directors.
On the other hand, in French law, Law No. 2001-420 of May 15, 2001 relating to new economic regulations (NRE) has already provided for the possibility of taking into account, for the calculation of the quorum and the majority, the directors or the members of the supervisory board participating in the board meeting by videoconference.
This is how article 109 of this law specifies that “Unless otherwise provided in the statutes, the internal regulations may provide that the administrators or members are deemed present for the calculation of the quorum and the majority of the supervisory board who participate in the board meeting by videoconference[1] ».
When the internal regulations of the council provide for it, the use of videoconferencing is therefore permitted under French law.
In addition to this condition of mention in the internal regulations, the implementation of these videoconferencing means requires the meeting of other conditions:
On the one hand, the videoconferencing means must meet technical characteristics guaranteeing effective participation in the board meeting, the deliberations of which are broadcast continuously.
Furthermore, the minutes of the session must mention the possible occurrence of a technical incident relating to a videoconference, when it disrupted the progress of the session.
The fact remains that French law has provided for several exceptions to the principle of taking videoconferencing into account for the calculation of quorum and majority, with regard to the most serious decisions of the board of directors.
Indeed, taking into account videoconferencing is excluded for the adoption of decisions such as the election of the president, his dismissal and the determination of his remuneration.[2], the appointment of deputy general directors, as well as the determination of the remuneration of the general director and deputy general directors[3], the dismissal of the general director and deputy general directors[4], the closing of the annual accounts and the management report[5] and the preparation of consolidated accounts and the group management report.[6]
In the current state of Tunisian law, the participation of directors in boards of directors by videoconference is not prohibited.
In the current state of Tunisian law, the participation of directors in boards of directors by videoconference is not prohibited.
First of all, it is recommended to mention in the statutes the possibility of participating in the board of directors by videoconference and to specify in the minutes of the board that such director is present by videoconference. In addition, it is necessary to provide for the ratification of this mode of presence by each of the directors.
Then, we must avoid resorting to this means regarding the most important decisions such as election, remuneration, dismissal, etc.
Finally, uninterrupted transmission of the meeting must be guaranteed and the secretary of the board of directors should specify that the meeting was transmitted from start to finish without incident; which allowed administrators to follow it and participate in it in an integral manner.
Teletransmission refers to the action of transmitting a signal or information remotely. Teletransmission includes telephone conference, Internet, videoconferencing or other new means of communication.
With particular regard to videoconferencing, it is a means allowing, in addition to the transmission of speech and graphic documents, the transmission of animated images of distant participants.
In Tunisian law, the question is not regulated.
Article 199 of the commercial companies code simply provides that the board of directors only validly deliberates if at least half of its members are present.
In the same sense, the last paragraph of this article provides that decisions are taken by the majority of members present or represented, unless the statutes provide for a greater majority. strong.
Thus, the law imposes a quorum for the validity of the deliberations and decisions of the board of directors in the limited company, without specifying or imposing a particular form on the presence of directors.
On the other hand, in French law, Law No. 2001-420 of May 15, 2001 relating to new economic regulations (NRE) has already provided for the possibility of taking into account, for the calculation of the quorum and the majority, the directors or the members of the supervisory board participating in the board meeting by videoconference.
This is how article 109 of this law specifies that “Unless otherwise provided in the statutes, the internal regulations may provide that the administrators or members are deemed present for the calculation of the quorum and the majority of the supervisory board who participate in the board meeting by videoconference[1] ».
When the internal regulations of the council provide for it, the use of videoconferencing is therefore permitted under French law.
In addition to this condition of mention in the internal regulations, the implementation of these videoconferencing means requires the meeting of other conditions:
On the one hand, the videoconferencing means must meet technical characteristics guaranteeing effective participation in the board meeting, the deliberations of which are broadcast continuously.
Furthermore, the minutes of the session must mention the possible occurrence of a technical incident relating to a videoconference, when it disrupted the progress of the session.
The fact remains that French law has provided for several exceptions to the principle of taking videoconferencing into account for the calculation of quorum and majority, with regard to the most serious decisions of the board of directors.
Indeed, taking into account videoconferencing is excluded for the adoption of decisions such as the election of the president, his dismissal and the determination of his remuneration.[2], the appointment of deputy general directors, as well as the determination of the remuneration of the general director and deputy general directors[3], the dismissal of the general director and deputy general directors[4], the closing of the annual accounts and the management report[5] and the preparation of consolidated accounts and the group management report.[6]
In the current state of Tunisian law, the participation of directors in boards of directors by videoconference is not prohibited.
In the current state of Tunisian law, the participation of directors in boards of directors by videoconference is not prohibited.
First of all, it is recommended to mention in the statutes the possibility of participating in the board of directors by videoconference and to specify in the minutes of the board that such director is present by videoconference. In addition, it is necessary to provide for the ratification of this mode of presence by each of the directors.
Then, we must avoid resorting to this means regarding the most important decisions such as election, remuneration, dismissal, etc.
Finally, uninterrupted transmission of the meeting must be guaranteed and the secretary of the board of directors should specify that the meeting was transmitted from start to finish without incident; which allowed administrators to follow it and participate in it in an integral manner.