Cette ordonnance adapte les règles de convocation, d’information, de réunion et de délibération des assemblées et des organes collégiaux d’administration, de surveillance et de direction des personnes morales comme des entités de droit privé ne jouissant pas de la personnalité morale, en vue d’assurer la continuité de leur fonctionnement et d’en sécuriser les réunions tenues ou à tenir dans le contexte actuel.

Ces mesures sont applicables rétroactivement à compter du 12 mars jusqu’au 31 juillet 2020, sauf prorogation de ce délai jusqu’à une date fixée par décret et au plus tard le 30 novembre 2020 (article 11 de l’ordonnance n°2020-321).

1.1   Scope

The ordinance encompasses all private law legal persons and entities that do not have legal personality. The following entities are thus covered without limitation: civil and commercial companies (including unincorporated partnerships (sociétés en participation),, pools of holders of securities or financial securities, French and European economic interest groupings, cooperatives, mutual insurance companies, mutual associations and federations of mutual insurance companies, mutual insurance companies, provident institutions, municipal credit unions and mutual agricultural credit unions, endowment funds (fonds de dotation), sustainability funds (fonds de pérennité), associations and foundations (article 1 of Ordinance 2020-321.

The measures provided for apply to all types of general meetings (ordinary, extraordinary and special meetings) and collegial supervisory or management bodies (such as boards of directors, supervisory boards and management boards), each being faced with difficulties to hold meetings because of the measures enacted to contain the spread of covid-19.

The ordinance makes a distinction between general meetings on the one hand and collegial administrative, supervisory or management bodies on the other hand, but provides a unified response to these issues.

1.2   Meetings of  collegial supervisory or management bodies

• Extending the use of videoconference and telecommunication facilities

The use of videoconference and telecommunication facilities is authorised for all meetings of collegial bodies, including those relating to the approval or review of the annual financial statements, without condition that the use of such facilities be included in the by-laws and internal regulations and without a clause to the contrary in the by-laws being able to oppose it (article 8 of Ordinance 2020-321).

In order to guarantee the integrity of the discussions, the technical means used must enable to identify the members of these bodies and guarantee their effective participation, the transmission of at least the participants’ voice and implementation of processes that allow the continuous and simultaneous retransmission of the deliberations being sufficient to meet this condition.

• Extension of the use of written consultations

The use of written consultations of members of the boards is extended (article 9 of the ordinance 2020-321).

The use of this mode of deliberation is authorised for all meetings of the collegial bodies, including those relating to the approval or review of the annual financial statements, without condition that the use of such facilities be included in the by-laws and internal regulations and without a clause to the contrary in the by-laws being able to oppose it.

The written consultation must be carried out under conditions, in particular in terms of timetable, which ensure the collegiality of the deliberations.

1.3   Convening and holding of general meetings

1.3.1    Convening and information rules

Firstly, as regard listed companies, the ordinance precludes any nullity of meetings when a convening notice to attend by post could not be sent out due to circumstances outside the company’s control (e.g. impossibility of access to the premises or of preparing the necessary notices, in the context of the covid-19 epidemic)

Pursuant to article 3 of the ordinance, the dematerialised exercise of the right of communication to which members of the meetings are entitled prior to the meeting is extended and made more flexible, thus authorising the use of electronic messages. However, and subject to this arrangement, the right of communication remains governed by the provisions specific to each meeting.

Furthermore, the formalities for convening meetings for which the place and mode of participation will be modified by applying the alternative methods of participation provided for by the ordinance (see point 1.3.2 below) are adjusted on an exceptional basis (article 7 of the ordinance 2020-321).

This particularly applies to entities that initiated these formalities before the date of entry into force of the ordinance with a view to a meeting to be held after that date.

In this case, the competent body of the entity that decides to apply the possibility of holding a “closed” meeting, by videoconference or written consultation, must inform the shareholders or members, either by means of a press release in the case of listed companies,or by any means ensuring that members in other entities are effectively informed, without having to repeat the formalities already completed on the date of this decision – any irregularity in convening the meeting being disregarded – (but without prejudice to the formalities that remain to be completed).

1.3.2    Rules of participation and deliberations

• Possibility of holding closed sessions

The holding of “closed” sessions (i.e. without the physical participation or participation by means of videoconference or telecommunication of their members  and other authorised participants, such as the statutory auditors and representatives of employee representative bodies) is exceptionally authorised, so as not to prevent the adoption of decisions whose adjournment could have significantly adverse consequences (e.g. on the granting of financing).

However, recourse to this derogation is subject to the condition that the meeting has been convened in a place affected, on the date of the convening notice or on the date of the meeting, by an administrative measure limiting or prohibiting collective gatherings on health grounds.

If this measure derogates on an exceptional and temporary basis from the right of members of general meetings to attend sessions (as well as from the rights whose exercise requires attendance at the meeting, such as, for example, the right to ask oral questions or to amend draft resolutions during the meeting), it must not affect the other rights (such as the exercise of the right to vote or the right to ask written questions) which are exercised in accordance with the provisions laid down in the texts applicable to them.

When a decision is made to hold a closed session, the members of the meeting (and other authorized participants) must be notified by any means capable of ensuring that they are effectively informed (such as notice of convening documents) of the date and time of the meeting and the conditions under which they will be able to exercise the rights attached to their membership.

Members shall participate and vote at the meeting in accordance with the other terms and conditions provided for by the texts governing the meeting and the ordinance (such as sending a proxy, remote voting or, if the body competent to convene the meeting so decides, videoconference or means of telecommunication).

• Facilitation of alternative modes of participation in meetings

In order to facilitate the participation of members in meetings held in closed session, method of participation by videoconference or written consultation is extended on an exceptional basis (articles 5 and 6 of the ordinance 2020-321).

These alternative methods of participation may be used for all decisions falling within the jurisdiction of general meetings, including those relating to the accounts.

The decision to use them is made by the body competent to convene the meeting, which may delegate its competence to the legal representative of the entity.

It thus becomes exceptionally authorised for entities for which this form of participation is not already provided for by law.

For entities for which this form of participation is authorised by law subject to certain conditions, the ordinance exceptionally neutralises these conditions (e.g. that subjecting it to the existence of a clause in the by-laws) and precludes the enforceability of a clause to the contrary in the by-laws,

In all cases, the means of videoconference or telecommunication used must ensure the identification of shareholders or partners and guarantee the integrity of the debates, the transmission of at least the voice of the participants and the implementation of processes allowing the continuous and simultaneous retransmission of the deliberations being sufficient to meet this condition.

With the same objective, recourse to written consultation of general meetings for which this method of participation is already provided for by law is facilitated by making it possible without a statutory clause to this effect being necessary or being able to oppose it.

2.1       Extension of submission time limit of financial statements by the management board to the supervisory board

The three-month period following the end of each financial year granted to the management board to present the financial statements (and, where applicable, consolidated accounts), together with the management report and any other documents required by law, to the supervisory board for verification and auditing purposes, is extended by three months (art. 1 of the ordinance 2020-318).

Only companies closing their accounts between 31 December 2019 and the expiry of a period of one month after the date of cessation of the state of health emergency declared by article 4 of the emergency aw dated 23 March 2020 may benefit from this extension.

This extension does not apply to companies that have appointed a statutory auditor when such auditor has issued his report on the accounts before 12 March 2020.

2.2       Extension of the time limit for drawing up financial statements by the liquidator

The three-month period following the end of each financial year granted to the liquidator of all commercial companies whose dissolution has been decided to draw up the annual financial statements and the report referred to in article L.237-25 of the French Commercial Code is extended by two months (article. 2 of the ordinance 2020-318).

Once again, only companies closing their accounts between 31 December 2019 and the expiry of one month after the date of cessation of the state of health emergency in force may benefit from this extension.

2.3       Extension of the deadline for approving the financial statements

Time limits required by law and regulations or by the by-laws of private law legal entities (including in particular sociétés par actions simplifiée) or entities without legal personality to approve the financial statements and, where applicable, the documents attached thereto, or to convene the general meeting responsible for such approval, are extended by three months (article 3 of the ordinance 2020-318).

This extension has a very broad scope of application: civil and commercial companies, economic interest groupings, cooperatives, mutual associations, unions and federations of mutual associations, mutual insurance companies, provident institutions and social protection insurance group companies, municipal credit unions and mutual agricultural credit unions, funds, associations, foundations, unincorporated partnerships (sociétés en participation).

However, this extension shall not apply to entities that have appointed a statutory auditor when such auditor has issued his report on the accounts before 12 March 2020.

Only entities closing their accounts between 30 September 2019 and the expiry of one month after the date of cessation of the state of public health emergency in force may benefit from this extension.

Thus, companies closing their accounts on 31 December 2019 have until 30 September 2020 to have them approved them.

As regards credit institutions or investment firms and asset management companies, it can reasonably be inferred from the Ordinance that the time limits for approving accounts and/or transmitting them to the supervisory authorities set by the ACPR and AMF regulations are also extended by three months.

2.4       Extension of the deadline for drawing up management forecast documents

Companies of a certain size – those with at least 300 employees or a turnover of at least EUR 18 million – must draw up a statement of realisable and available assets, a forecast profit and loss account, a cash flow statement and a forecast financing plan.

Deadlines imposed on the board of directors, management board or managing directors pursuant to article R. 232-2 of the French Commercial Code for the preparation of the aforementioned documents are extended by two months (article 4 of the ordinance 2020-318).

This extension applies to documents relating to accounts or half-years closed between 30 November 2019 and the expiry of one month after the date of cessation of the current state of emergency.