The assemblies and meetings of the collegial bodies of a company (associates, shareholders, directors, members of the supervisory board, auditors, representatives of the social and economic committee...) are a place for debates and decision making. Indeed, during these assemblies and meetings, the convened members debate on a predefined agenda and vote on the various resolutions it contains.
This voting process can be entirely dematerialized. The democratization of electronic voting at general assemblies and meetings was made possible by theordinance n° 2020-321 of March 25, 2020. It provided that all commercial and civil companies, but also economic interest groups and associations could hold a fully dematerialized meeting(electronic convening, video-conference debates and online voting). This ordinance has been extended for a long time but is no longer in force since October 1st 2021.
In addition, law n°2022-46 of January 22, 2022 reinforcing the tools for managing health crises and modifying the public health code enacted, in its article 13, the simplification and adaptation of the rules relating to meetings and decision-making of collegiate administrative, supervisory and management bodies. Thus, the dematerialization of meetings of these bodies and the use of electronic voting allowing the identification of participants and guaranteeing their effective participation remained possible until July 31, 2022.
However, due to the end of the state of health emergency, it is appropriate to revert to the application of special company law regarding online voting at general meetings and meetings of collegiate administrative, supervisory and management bodies.
The electronic vote is to be distinguished from the vote by mail. Indeed, during a postal vote, the associate will send his voting form to the company so that his vote can be counted during the general meeting. However, in the case of electronic voting, no voting form is sent to the company, the votes are done directly online, through a secured electronic service allowing the identification of the different associates. Thus, this vote allows the participants' votes to be counted instantly.
Knowing that such a vote can be programmed to open at a certain date and time and close in the same way.
To find out more, read our legal summary on electronic voting.
The decree n° 78-704 of July 3, 1978 does not foresee the possibility of an electronic vote. The notion of electronic voting was not part of the issues at the time.
However, with the entry into force of Order no. 2020-321 of March 25, 2020, the possibility of voting directly online, and not by mail, to participate in the general meetings of a non-trading company has demonstrated both the usefulness of such a process and its reliability. This is why, even if the aforementioned ordinance is no longer applicable since October 1, 2021, it remains possible for non-trading companies to provide in their articles of association that votes at general assemblies (ordinary, extraordinary, mixed, etc.) may be carried out directly online.
Thus, in the silence of the law, it is up to the statutes to make up for it by providing that the associates can vote by electronic voting at the general assemblies
(ordinary, extraordinary, mixed...).
Article L. 223-27 of the Commercial Code provides that where the articles of association so provide, the participation of associates in the meeting may be by videoconference or by telecommunication means allowing the identification of associates.
Exceptionally, electronic voting is not possible when:
Article L. 227-9 of the Commercial Code provides that the forms and conditions of collective decisions are governed by the freedom of the articles of association.
However, the second paragraph of the said article requires that shareholders' decisions be taken collectively for decisions relating to the powers vested in the extraordinary and ordinary general assemblies of public limited companies in matters :
The holding of shareholders' meetings is governed by article L. 225-103-1 of the French Commercial Code. It provides that the bylaws are free to stipulate that
general assemblies (ordinary and extraordinary) will be held exclusively
by videoconference or by a means of telecommunication allowing the identification of shareholders.
As an exception , the use of such procedures cannot take place:
Pursuant to Article L. 225-37 paragraph 3 of the French Commercial Code, it is up to the Board of Directors' internal rules to provide for the possibility for directors to deliberate by videoconference or telecommunication means allowing their identification and guaranteeing their effective participation.
However, 3 exceptions remain and make it impossible to use such means:
Article L. 225-82 paragraph 3 of the French Commercial Code provides
that the internal rules of procedure of the supervisory board may provide for the possibility for its members to deliberate "by videoconference or telecommunication means allowing their identification and guaranteeing their effective participation".
As with board meetings, there are still some exceptions to the dematerialization:
To make it easier for you to organize votes at your general meetings, we've provided a model postal voting form that you can download free of charge.
