The law of 10 August 2016 which has modernised the law of 10 August 1915 on commercial companies, as amended (the “Law”) has brought different changes aiming at clarifying and simplifying the rules applicable to the general meetings (the “GMs”) of public limited liability companies (SA) and private limited liability companies (SARL). The major changes are as follows:
1 Clarification of the convening periods for ordinary and extraordinary GMs in SAs and simplification of the means to convene shareholders
First GMs:
- Convening notices shall be (i) filed with the Luxembourg Trade and Companies Register and published in the Recueil Electronique des Sociétés et Associations and in one newspaper in Luxembourg 15 clear days prior to the GM and (ii) sent 8 clear days prior to the holding of the GM by simple letters to the registered shareholders unless each addressee of the notice has individually accepted communication through any other means of communication.
- Where all the shares are in registered form, the convening notices, instead of being published, may be sent by the company, 8 clear days prior to the holding of the GM, by registered mail unless each addressee of the notice has individually accepted communication through any other means of communication which guarantee receipt of information at least 8 clear days prior to the meeting.
Second GMs (if the quorum for the 1st GM is not met):
- Convening notices shall be filed with the Luxembourg Trade and Companies Register and published in the Recueil Electronique des Sociétés et Associations and in one newspaper in Luxembourg, 15 clear days prior to the GM. Where all the shares are in registered form, the convening notices, instead of being published, may be sent by the company, 8 clear days prior to the holding of the GM, by registered mail unless each addressee of the notice has individually accepted communication through any other means of communication which guarantee receipt of information at least 8 clear days prior to the meeting.
2 Clarifications regarding the right to be convened to attend GMs
SA – Extension of the list of the persons who can attend GMs:
- the board of directors, the supervisory board, the statutory auditors and the independent auditors can now formally be convened and are expressly authorised to participate in any GMs;
- each of the joint owners, usufruct owners and bare owners can attend any GMs whether entitled to vote or not.
SA and SARL – Situation of bondholders:
- they have the right to attend GMs except otherwise provided in their instrument of issue;
- their consent is no longer required with respect to change of nationality, increase of shareholders’ commitments or the amendments to the corporate object or to the form of the company.
3 Clarification regarding the information right
With respect to SA:
- reduction of the timeframe during which shareholders may inspect statutory documents at the registered office of the company from 15 to 8 days prior to the GM;
- in case of amendment of the articles of association, obligation to make available 8 days prior to the GM, at the registered office for inspection, the text of the amendment and the draft consolidated articles of association;
- each of the joint owners, usufruct owners and bare owners have the right to request, free of charge, 8 days prior to the GM, a copy of certain documents such as the annual accounts.
With respect to SARL:
each of the joint owners, usufruct owners and bare owners have the right to obtain communication of the statutory documents at the registered office of the company.
4 Increased flexibility for annual GMs in SAs
The date and time of the annual GM, no longer need to be indicated in the articles of association. Convening notices to the annual GMs will need to be sent within a timeframe sufficient to allow for the annual GM to be held within 6 months following the end of the company’s financial year.
