Electronic voting

Electronic voting is an essential step in a general assemblies. Once the associates have debated the resolutions on the agenda, they proceed to the vote and exercise their rights. 

Voting can also be carried out electronically. Indeed, in compliance with the legal conditions, companies can, with the agreement of the associates, proceed to a dematerialized vote. The associates connect to an interface allowing them to vote next to each resolution. Such a legal evolution was welcome during the health crisis, because it allowed the holding of meetings and thus the life of companies in general to flourish. Indeed, the ordinance n°2020-321 of March 25, 2020 allowed the use of videoconferencing for collegiate bodies of administration, supervision or management, of all legal forms. 

1. The electronic voting process 

a. Common provisions (shareholders' meetings)

Shareholders may participate in meetings by "videoconference or by electronic means of telecommunication allowing their identification", if the articles of association so permit (article L. 225-107, II, of the French Commercial Code).  

Therefore, a special site must be set up for shareholder voting. The use of this site cannot be imposed on the shareholders. Therefore, their prior consent must be obtained.  

Moreover, in the event of a breakdown of the video-conferencing system, the debates must be suspended and the means of telecommunication used must allow the transmission, at least, of the shareholders' votes (article 145-2 of the decree of March 23, 1967).  

In addition, shareholders who vote electronically must identify themselves by means of an access code that has been allocated to them prior to the meeting (for sociétés anonymes, C.com. article R. 225-98). Also, the company must put in place a reliable identification process that makes it possible to guarantee the link between the signature and the voting right form (for the société anonyme, C. com. article R. 225-77).  

Finally, an attendance sheet must be signed by all participants.  

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b. Specific provisions (board of directors, management board and supervisory board)  

The use of video-conferencing is authorized in this respect. However, at least once a year, the Board must meet in person to vote on the annual and consolidated accounts.  

As regards voting, Article L. 225-36-1 paragraph 1 of the French Commercial Code provides for statutory freedom. Thus, the use of electronic voting must be mentioned in the articles of association and in the internal regulations.    

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2. Authentication

In recent years, several recommendations have been adopted by the Commission Nationale de l'Informatique et des Libertés (CNIL). Such recommendations are not, by themselves, binding. The CNIL recommends a double authentication of voters taking part in electronic voting.  

• According to Deliberation No. 2019-053 of April 25, 2019: "To connect remotely or onsite to the voting system, the voter must authenticate in accordance with this recommendation and using a means that meets the security objective corresponding to the level of risk identified for the ballot. During this procedure, the voting server verifies the identity of the voter and that he is authorized to vote. In this case, the voter accesses the lists or candidates officially selected and in the official order.  
  
• According to Deliberation No. 2017-012 of January 19, 2017: "It emerges from the exchanges that the CNIL has with data controllers as part of its advisory and control missions, both a priori and a posteriori, that the most widespread means of authentication currently used in the context of access control to a digital resource is that combining an identifier with a (secret) password. However, the commission has always considered that other means offer more security, such as two-factor authentication or electronic certificates." 
  

3. Signing in

The deliberation n°2010-371 of October 21, 2010 adopting a recommendation relating to the security of electronic voting systems adopted by the CNIL provides that: "The vote must be counted as soon as the vote is validated so that another vote cannot be cast using the voter's authentication details already used. Time stamping is included in the counting of votes. This list, for the purpose of controlling the counting of votes, as well as the vote counter, must be accessible only to the members of the polling station and to authorized persons. 

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To make it easier for you to organize electronic voting at your general meetings, we've provided a free downloadable model postal voting form.

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