Per rollam decision-making at general meetings after the amendment to the Act 2021

14.1.2021

The amendment to the Business Corporations Act (Act No. 33/2020 Coll.) effective as of 1 January 2021 brought a number of changes in the area of holding general meetings or per rollam decision-making. The most important changes relate in particular to: a) proposals and counterproposals to items included on the agenda of the AGM, b) invitation to the AGM in case of amendments to the Articles of Association, c) the right of a shareholder (shareholder) to take an escort to the AGM, d) the systation of a shareholder's (shareholder's) voting right on the basis of the articles of association (articles of association) and e) per rollam decision-making at SROs.

Author of the article: ARROWS law firm (JUDr. Vladimír Janošek, office@arws.cz, +420 245 007 740)

This article was written in 2021. If you are looking for up-to-date information on this topic, please do not hesitate to contact us at office@arws.cz or by phone at +420 245 007 740. We will be happy to advise you.

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Proposals and counter-proposals to the items on the agenda of the AS AGM

The amendment makes it clear that a shareholder is entitled to make proposals and counterproposals on matters included on the agenda of the AGM both before the AGM and during the AGM.

The existing legal regulation in Section 361(2) of the CCC (cf. the phrase "before the General Meeting") led to the interpretation that a shareholder may only submit proposals and counterproposals before the AGM.

office@arws.cz 245 007 740

Invitation to the Annual General Meeting for the amendment of the Articles of Association

The amendment tightens the requirements for the content of the invitation to the AGM at the AGM if an amendment to the articles of association is on the agenda. In such a case, the invitation must contain at least a brief and concise description and justification of the proposed changes to the statutes.

The statutory body shall publish the complete draft amendment to the Articles of Association together with the invitation to the AGM on the website of the AS and the AS shall allow each shareholder to inspect the draft amendment to the Articles of Association free of charge at the registered office of the AS within the time limit specified in the invitation to the AGM; the shareholder must be notified of this right in the invitation to the AGM (Section 407(3) of the German Commercial Companies Act).

Right of a shareholder to be accompanied to the AGM

According to the decision-making practice of the Supreme Court, a shareholder is not entitled directly by law to take an escort to the AGM. The amendment overcomes this jurisprudence by providing in Section 168(3) of the CCC (Section 399(2) of the CCC) that a shareholder may be accompanied at the AGM by a person designated by the shareholder (e.g. a lawyer, tax advisor, auditor). According to the transitional provisions, this change will not take effect until 1 January 2023.

At the same time, the amendment allows that the articles of association may exclude this legal right of a shareholder.

Voting rights of a shareholder based on the articles of association

The amendment expands the range of cases when a shareholder does not exercise his/her voting right (Sections 173(1)(e) and 426(e) of the CCC). It is now expressly admitted that the articles of association (articles of association) may specify another important reason for which a shareholder cannot exercise the voting right.

In practice, the requirement to restrict the voting rights of a shareholder who has a conflict of interest is particularly common; a conflict of interest is undoubtedly another important reason (see the explanatory memorandum).

Per rollam decision-making in SROs

The amendment tightens the requirements for per rollam decision-making in SROs in cases where the law requires the decision of the General Meeting to be certified by a notarial deed. In practice, this method of decision-making has been widely used in the case of amendments to the articles of association in order to save the costs of notarial fees, where until 31 December 2020 it was sufficient for the signature on the shareholder's statement on the proposal to be officially certified. Thus, there was no need to make a costly notarial record of the decision. However, according to the explanatory memorandum, this regulation was contrary to European law, which provides for notarial notation.

Therefore, the amendment introduces two new types of notarial minutes, namely notarial minutes on the draft decision and notarial minutes on per rollam decision-making (official verification of the signature will no longer be sufficient). This increases the administrative burden for entrepreneurs.

We will help you set up the rules for the General Meeting and per rollam decision-making

In many cases, the above-mentioned innovations will require a change in the founding legal act (articles of association, articles of association). Our corporate team will advise you on setting up these rules. If you have any additional questions or need help with modifying these documents? Our company is fully at your disposal.