Reuniones ordinarias no presenciales durante la emergencia sanitaria

Article 1 of Decree No 398 states that, for the purposes of the virtual meetings referred to in Article 19 of Law No 222 of 1995, when reference is made to "all partners or members" it is understood that it refers to those who participate in the virtual meeting, provided that the minimum quorum is present for deliberation. In this sense, it is not necessary to have 100% participation of the shareholders, partners or members of the board of directors, in order to hold a virtual meeting.

Likewise, it is mentioned that the legal representative must verify the identity of the participants in the meeting, that is, that they are the shareholders or partners, their attorneys or members of the board of directors and, also, must record in the minutes the continuity of the quorum during the entire meeting.  

Finally, the article of the Decree refers to the fact that the legal and statutory provisions on convening, quorum and majorities applicable to in person meetings will also be applicable to virtual meetings. 

On the other hand, Article 2 refers to the fact that if, on the date the Decree comes into force (i.e. March 13 2020), the ordinary face-to-face meeting of the maximum corporate body for the year 2020 has been summoned, it may, up to one day prior to the date of the meeting, give scope to the call to indicate that it will be held in a virtual manner. Said scope must be made by the same means used to call the meeting and indicate (i) that it will be "held under the terms of Article 19 of Law 222 of 1995, as amended by Article 148 of Decree Law 019 of 212 and Article 1 of Decree 398 of 2020"; (ii) the technological means to be used; and (iii) the manner in which the partners, shareholders or their attorneys may access said means.

Additionally, the Superintendence of Companies, in the External Circular Letter, reiterates what is mentioned in Decree 398 of 2020 and gives additional instructions, which we mention below

  1. Possibility of holding mixed meetings: Those in which some people participate face-to-face and others virtually. The above, as long as it is determined in the summon. 
  2. Scope of the call: Invites the directors to use additional means to achieve the greatest possible dissemination among the members or shareholders of the scope of the summon to indicate that it is virtual or mixed. 
  3. Extensive application of Decree 398: Although the Decree refers to legal persons not supervised by the Superintendence of Companies, Article 3 extends its application to all legal persons, without exception. 
  4. In person or mixed meetings: In the case of face-to-face or mixed meetings, the legal representative is recommended to warn the participants of the need to adopt the protection and self-care measures indicated by the Ministry of Health and Social Protection. 
  5. Impossibility of holding the regular meeting: In the event that the meeting has already been summoned and it is not possible to hold it in a virtual or mixed manner, or if the capacity of the face-to-face or mixed meeting exceeds the restrictions indicated by the authorities, taking into account the restrictions in some cities for holding public or private meetings, the provisions of public order take precedence over corporate regulations and, in this sense, the legal representatives must warn in the same manner in which the call was made, of the impossibility of holding the meeting due to events that would be considered as force majeure.
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