Decision-making in an anonymous business (SA)
Verified 13 January 2023 - Directorate for Legal and Administrative Information (Prime Minister)
In an anonymous business (SA), the business shall be directed either by the Management Board or by the Executive Board. On the other hand, decisions on life and business developments are taken by shareholders at general meetings.
According to the decision, the rules concerning its approval are specific.
SA to Board of Directors
It exists 3 assembly types :
- Ordinary General Assembly (AGO)
- Extraordinary General Assembly (AGE)
- Special Assembly
Please note
Assemblies may also be "mixed" when they take decisions of AGO competence and AGE competence at the same time.
Ordinary General Assembly (AGO)
Shareholders take all decisions which do not entail amendment of the statutes at an ordinary general meeting (AGO).
These include, for example:
- Approval of annual accounts
- Appointment or replacement of members of the Board of Directors
- Application of statutory provisions
The ordinary general meeting must take place at least once a year, 6 months after the closure of the accounts of the business.
Extraordinary General Assembly (AGE)
At an extraordinary general meeting, shareholders shall take decisions which alter the statutes of the business.
These include, for example:
- Extending the objects of the company
- Move the registered office
- Reduce capital
- Changing profit allocation
Special Assembly
Some actions have special rights. Holders of such shares, for example, gain financially by claiming a priority dividend. We're talking preference actions.
As soon as the rights attached to one of these types of preference shares are called into question, the shareholders holding these shares must approve the proposed change. Only the shareholders concerned may participate in the special meeting.
There are as many special assemblies as there are preference action types.
A meeting of shareholders shall in principle be convened by board of directors duly constituted.
If the committee does not do so, several other persons may convene a meeting. They are:
- Where there are, the auditors
- Agent appointed in legal proceedings
- Administrator temporary (with a general mandate to manage the business)
- Liquidator
- Majority shareholder capital or voting rights after a public bid or exchange or after a transfer of a control block
Before the summons of the shareholders' meeting, the following actions shall be carried out:
- Send a notice of meeting
- Make a point deposit or of draft resolutions
- Enter points or project agenda item and project approvals (authorizations) by the Board of Directors
They are in principle the statutes of the business which define the rules for convening the meeting.
However, shareholders must be summoned in one of the following ways:
- By thesending of individual summonses to all shareholders by post or e-mail
- By publication of a notice of meeting in a legal advertising medium and thesending of an individual invitation to each shareholder
The rules of quorum and majority depend on the type of shareholder meeting.
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Ordinary General Assembly (AGO)
A decision shall be adopted at an ordinary general meeting when the rules of quorum and the following majority are present:
- 1re summons: it is necessary 1/5 of voting rights (1 voting right = 1 share) represented and one majority of voices shareholders present or represented
- If the 1re summons is unsuccessful, there is one 2of summons: it is necessary to majority of the votes shareholders present or represented
Example :
In a business of 10 shareholders, each shareholder owns 1 share.
In 1re summons, 4 shareholders are present or represented, which corresponds to 4/10 of the voting rights, i.e. 2/5. When the vote is taken, three votes are cast on proposal A and one vote is cast on proposal B. Proposal A shall be adopted by a majority of the votes of the shareholders present.
If a majority had not been obtained, a second meeting would have taken place, without a minimum number of represented or present voting rights being necessary for the decision to be voted on. However, it must be adopted by a majority of the votes of those present or represented.
The articles of association may provide that special general meetings are to be held by videoconference or other means of telecommunication which enable shareholders to be identified.
A attendance sheet must be kept at the end of each meeting.
When a shareholder cannot attend a meeting, he may decide to be represented by another person. For example, it may be his spouse or another shareholder.
Extraordinary General Assembly (AGE)
A decision shall be adopted when the quorum and the following majority are present:
- 1re summons: it is necessary 1/4 of voting rights (1 voting right = 1 share) present or represented and one 2/3 majority of votes shareholders present or represented
- If the 1re summons is unsuccessful, there is one 2of summons: it is necessary 1/5 of voting rights (1 voting right = 1 share) present or represented and one 2/3 majority of votes shareholders present or represented
Please note
When a shareholder cannot attend a meeting, he may decide to be represented by another person. For example, it may be the spouse or another shareholder.
Example :
In a business of 20 shareholders, each shareholder owns 1 share.
In 1re summons, 8 shareholders are present or represented which corresponds to more than 1/4 of the voting rights (which corresponds to 20/4=5). When the vote is taken, 4 votes are cast on proposal A and 4 votes are cast on proposal B.
A majority of 2/3 of the votes of the present and represented is not obtained, and no decision is taken. We need to do a twonde summons.
During the 2nde summons, 10 shareholders are present or represented which corresponds to more than 1/5 of the voting rights (which corresponds to 20/5=4). In the vote 8 votes are for proposal A and 2 votes are for proposal B. The majority of 2/3 is achieved ((10x2)/3 = 6.6), proposal A is adopted.
The articles of association may provide that special general meetings are to be held by videoconference or other means of telecommunication which enable shareholders to be identified.
A attendance sheet must be kept at the end of each meeting.
Special Assembly
Only shareholders holding a certain types of actions may participate in a special meeting where the business intends to amend the special rights attached to those shares. The modification can only take place if these shareholders approve it.
We're talking preference actions on which certain rights are attached. There can be different types of preference actions. As soon as the rights attached to one of these types of preference shares are called into question, the shareholders holding that type of share must approve the modification of those rights.
There are as many special assemblies as there are preference action types.
When a shareholder cannot attend a meeting, he may decide to be represented by another person. For example, it may be the spouse or another shareholder.
A decision shall be adopted when the quorum and the following majority are present:
- 1re summons: it is necessary 1/3 of voting rights (1 voting right = 1 share) present or represented and a 2/3 majority of votes shareholders present or represented
- If the 1re summons is unsuccessful, there is one 2nde summons: it is necessary 1/5 of voting rights (1 voting right = 1 share) present or represented and one 2/3 majority of votes shareholders present or represented
If the quorum rules are not respected, the decision will be void.
A attendance sheet must be kept at the end of each meeting.
Example :
In a business of 20 shareholders, each shareholder owns 1 share.
In 1re summons, 8 shareholders are present or represented which corresponds to more than 1/3 of the voting rights (which corresponds to 20/3=6,5. When the vote is taken, 4 votes are cast on proposal A and 4 votes are cast on proposal B.
A majority of 2/3 of the votes of the present and represented is not obtained, and no decision is taken. We need to do a twoof summons.
During the 2of summons, 10 shareholders are present or represented which corresponds to more than 1/5 of the voting rights (which corresponds to 20/5=4). In the vote 8 votes are for proposal A and 2 votes are for proposal B. The majority of 2/3 is achieved ((10x2)/3 = 6.6), proposal A is adopted.
Joint Assembly
At a joint meeting, shareholders come together to make decisions which are the responsibility of an ordinary general meeting and an extraordinary general meeting. It makes it possible not to have to join together 2 different successive assemblies.
When a shareholder cannot attend a meeting, he may decide to be represented by another person. For example, it may be the spouse or another shareholder.
The rules of quorum and majority are different depending on the type of decision:
- In the case of a decision by the ordinary general meeting, the following rules shall apply:
- 1re summons: it is necessary 1/5 of voting rights (1 voting right = 1 share) represented and one majority of votes shareholders present or represented
- If the 1re summons is unsuccessful, there is one 2of summons: you need a majority of votes shareholders present or represented
- In the case of a decision taken by the extraordinary general meeting, the following rules shall apply:
- 1re summons: it is necessary 1/4 of voting rights (1 voting right = 1 share) present or represented and one 2/3 majority of votes shareholders present or represented
- If the 1re summons is unsuccessful, there is one 2of summons: it is necessary 1/5 of voting rights (1 voting right = 1 share) present or represented and one majority of 2/3 the votes of shareholders present or represented
A attendance sheet must be kept at the end of each meeting.
After each meeting of shareholders, minutes must be drawn up.
It must contain the following information :
- Date and place of the meeting
- Convening Mode
- Agenda
- Composition of the Bureau
- Number of shares voting
- Quorum reached
- Documents and reports submitted to the Assembly
- Summary of the discussions
- Text of resolutions put to the vote
- Result of votes
The minutes must be signed by the members of the bureau, i.e. the executive bodies, the persons participating in the counting of votes (tellers) and the secretary of the bureau.
The minutes must then be inserted in the CW register of the business.
SA with Executive Board and Supervisory Board
It exists 3 types of assemblies :
- Ordinary General Assembly (AGO)
- Extraordinary General Assembly (AGE)
- Special Assembly
The decisions taken and the rules for quorum and majority are different depending on the meeting held.
Please note
Assemblies may also be "mixed" when they take decisions of AGO competence and AGE competence at the same time.
Ordinary General Assembly (AGO)
At an ordinary general meeting, shareholders shall all decisions which do not entail amendment of the statutes.
These include, for example:
- Approval of annual accounts
- Appointment or replacement of members of the Executive Board
- Application of statutory provisions
The ordinary general meeting must take place at least once a year, 6 months after the closure of the accounts of the business.
Extraordinary General Assembly (AGE)
At an extraordinary general meeting, shareholders shall take decisions amending the statutes of the business. Examples of such decisions include:
- Extend thesocial object
- Relocate headquarters
- Reduce capital
- Changing profit allocation
Special Assembly
Some actions have special rights. Holders of such shares, for example, gain financially by claiming a priority dividend. We're talking preference actions.
As soon as the rights attached to one of these types of preference shares are called into question, the shareholders holding these shares must approve the proposed change. Only the shareholders concerned may participate in the special meeting.
There are as many special assemblies as there are preference action types.
A meeting shall in principle be convened by the executive board duly constituted.
Where the Minister does not do so, several other persons may convene a meeting, including:
- Where there are, the auditors
- Agent appointed in legal proceedings
- Administrator interim (with a general mandate to manage the business)
- Liquidator
- Majority shareholder capital or voting rights after a public bid or exchange or after a transfer of a control block
- Supervisory Board
Before the summons, the following actions should be carried out:
- Send a notice of meeting
- Make a point deposit or draft resolutions
- Enter points or project agenda item and project approvals (authorizations) by the Executive Board
They are in principle the statutes of the business which define the rules for convening the meeting.
However, shareholders must be summoned in one of the following ways:
- By thesending of individual summonses to all shareholders by post or e-mail
- By publication of a notice of meeting in a legal advertising medium and thesending of an individual invitation to each shareholder
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Ordinary General Assembly
A decision shall be adopted at an ordinary general meeting when the rules of quorum and the following majority are present:
- 1era summons: it is necessary 1/5 of voting rights (1 voting right = 1 share) represented and one majority of votes shareholders present or represented
- If the 1era summons is unsuccessful, there is one 2nde summons: you need a majority of votes shareholders present or represented
Example :
In a business of 10 shareholders, each shareholder owns 1 share.
In 1re summons, 4 shareholders are present or represented, corresponding to 4/10 of the voting rights, i.e. 2/5. When the vote is taken, three votes are cast on proposal A and one vote is cast on proposal B. Proposal A shall be adopted by a majority of the votes of the shareholders present.
If a majority had not been obtained, a second meeting would have taken place, without a minimum number of represented or present voting rights being necessary for the decision to be voted on. However, it will have to be adopted by a majority of the votes of those present or represented.
The statutes may provide that ordinary general meetings shall be held by videoconference or other means of telecommunications which enable shareholders to be identified.
When a shareholder cannot attend a meeting, he may decide to be represented by another person. For example, it may be the spouse or another shareholder.
One attendance sheet shall be held at the end of each meeting or the proceedings shall be canceled.
Extraordinary General Assembly
A decision shall be adopted when the quorum and the following majority are present:
- 1re summons: it is necessary 1/4 of voting rights (1 voting right = 1 share) present or represented and one 2/3 majority of votes shareholders present or represented
- If the 1re summons is unsuccessful, there is one 2of summons: it is necessary 1/5 of voting rights (1 voting right = 1 share) present or represented and one 2/3 majority of votes shareholders present or represented
Example :
In a business of 20 shareholders, each shareholder owns 1 share.
In 1re summons, 8 shareholders are present or represented which corresponds to more than 1/4 of the voting rights (which corresponds to 20/4=5). When the vote is taken, 4 votes are cast on proposal A and 4 votes are cast on proposal B.
A majority of 2/3 of the votes of the present and represented is not obtained, and no decision is taken. We need to do a twoof summons.
During the 2of summons, 10 shareholders are present or represented which corresponds to more than 1/5 of the voting rights (which corresponds to 20/5=4). In the vote 8 votes are for proposal A and 2 votes are for proposal B. The majority of 2/3 is achieved ((10x2)/3 = 6.6), proposal A is adopted.
When a shareholder cannot attend a meeting, he may decide to be represented by another person. For example, it may be the spouse or another shareholder.
Special Assembly
A decision shall be adopted in quorum and the following majority are present:
- 1re summons: it is necessary 1/3 of voting rights (1 voting right = 1 share) present or represented and one 2/3 majority of votes shareholders present or represented
- If the 1re summons is unsuccessful, there is one 2of summons: it is necessary 1/5 of voting rights (1 voting right = 1 share) present or represented and one 2/3 majority of votes shareholders present or represented
If the quorum rules are not respected, the decision will be void.
Example :
In a business with 20 shareholders, each shareholder owns 1 share.
In 1re summons, 8 shareholders are present or represented which corresponds to more than 1/3 of the voting rights (which corresponds to 20/3=6,5. When the vote is taken, 4 votes are cast on proposal A and 4 votes are cast on proposal B.
A majority of 2/3 of the votes of the present and represented is not obtained, and no decision is taken. We need to do a twoof summons.
During the 2of summons, 10 shareholders are present or represented which corresponds to more than 1/5 of the voting rights (which corresponds to 20/5=4). In the vote 8 votes are for proposal A and 2 votes are for proposal B. The majority of 2/3 is achieved ((10x2)/3 = 6.6), proposal A is adopted.
Joint Assembly
At a joint meeting, shareholders come together to decisions which are the responsibility of an ordinary general meeting and an extraordinary general meeting. It makes it possible not to have to join together 2 different successive assemblies.
When a shareholder cannot attend a meeting, he may decide to be represented by another person. For example, it may be the spouse or another shareholder.
The rules of quorum and majority are different depending on the type of decision:
- In the case of a decision under the ordinary general meeting the following rules apply:
- 1re summons: it is necessary 1/5 of voting rights (1 voting right = 1 share) represented and one majority of votes shareholders present or represented
- If the 1re summons is unsuccessful, there is one 2of summons: you need a majority of votes shareholders present or represented
- In the case of a decision under thespecial general meeting the following rules apply:
- 1re summons: it is necessary 1/4 of voting rights (1 voting right = 1 share) present or represented and one 2/3 majority of votes shareholders present or represented
- If the 1re summons is unsuccessful, there is one 2of summons: it is necessary 1/5 of voting rights (1 voting right = 1 share) present or represented and one 2/3 majority of votes shareholders present or represented
After each meeting of shareholders, minutes must be drawn up.
It must contain the following information :
- Date and place of the meeting
- Convening Mode
- Agenda
- Composition of the Bureau
- Number of shares voting
- Quorum reached
- Documents and reports submitted to the Assembly
- Summary of the discussions
- Text of resolutions put to the vote
- Result of votes
The minutes must be signed by the members of the bureau, i.e. the executive bodies, the persons participating in the counting of votes (tellers) and the secretary of the bureau.
The minutes must then be inserted in the CW register business.
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