New legislation to enable meetings of corporate bodies without physical presence
In order to avoid physical contact given the COVID-19 pandemic, Art. 8 Covid-19-VJBG (LGBl 2021/358), which remains valid until 30th June 2022, temporarily made it possible to hold general meetings without participants’ physical presence and to pass resolutions by circulation regardless of the number of members, if precisely worded resolutions are sent to the members in writing and if the minimum number of voters required to pass a resolution participates in the vote. Under the Covid-19-VJBG, resolutions can also be passed without physical presence and regardless of the number of members attending via video or telephone conference. In such cases, mechanisms for participation and voting must be announced in the convocation.
In order to permanently incorporate the alleviation and improvements provided by the Covid-19-VJBG, a legislative amendment procedure is currently underway. The new provisions shall enter into force on 1st August 2022.
The government bill submitted to the Landtag deals with the following key points:
In addition to the already possible adoption of resolutions by circular letter (now Art. 112 para. 4 item a PGR), it shall also be possible to adopt resolutions by electronic means (Art. 112 para. 4 item b PGR).
Pursuant to Art. 177a para. 1 PGR, the board of directors may, in future, provide that participants who are unable to attend a physical meeting may exercise their rights through electronic means (electronic participation and voting).
Art. 177a para. 2 PGR states that meetings and the passing of resolutions may be done entirely virtually regardless of the number of members and therefore without physical presence and place of meeting. The company's articles of association must provide for this possibility and be amended accordingly in advance.
The necessary amendment to the articles of association can be decided in the course of a hybrid meeting held in accordance with Art. 177a para. 1 PGR (members can participate electronically in the in-person meeting).
According to Art. 177b PGR, the convening of a meeting held in this form must, in addition to the general requirements according to Art. 167 para. 3 PGR, also contain mechanisms for participation and voting. If a completely virtual meeting within the meaning of Art. 177 para. 2 PGR is held, the indication of the venue is consequently omitted.
Art. 177c PGR stipulates that, in future, the board of directors shall regulate the electronic mechanisms and ensure that
– the identity of the participants is known;
– the vote of the assembly is instantly transmitted;
– every participant can make motions and take part in the discussion;
– the result of the vote cannot be distorted.
In the event of technical problems, the meeting must be repeated in accordance with Art. 177d PGR. Resolutions passed before the technical problems occurred remain valid.
If the adoption of a resolution requires public certification according to Art. 177 PGR (e.g. establishment, amendment of statutes, dissolution of the legal entity), the certifying officer must be present at the place of meeting. Accordingly, such resolutions can only be passed for the foreseeable future in the course of a hybrid meeting.
The new provisions will be included in the general provisions for the supreme body of legal entities. This means that they will apply to all corporations under Liechtenstein law, in particular to joint-stock companies, establishments, associations, limited liability companies and cooperatives.
Finally, it should be noted that the above amendments represent an interim step towards a more far-reaching reform of company law in the course of the implementation of EU Directive 2019/1151 ("Digitalisation Directive"). According to the government's plans, the Digitalisation Directive is to be implemented by 1st January 2024.
For further information, please contact Dr. Domenik Vogt, LL.M., LL.M.