This authorization was exercised by the Ordinance of the Minister of Justice of April 8, 2020 (COVID-19 Ordinance on Corporate Law - COVID-19-GesV). The Ordinance enters into force retrospectively as of March 22, 2020 and, as its legal basis, is limited in time until December 31, 2020. It covers assemblies of shareholders and bodies of other corporations, partnerships, cooperatives, private foundations, associations, mutual insurance companies, small insurance companies and savings banks.
In addition to the possibility of holding virtual meetings, the COVID-19-GesG also allows postponing corporate law operations and resolutions that would otherwise have been necessary within certain periods or on certain dates. For example, the period for the preparation of the annual financial statements pursuant to Section 222 para 1 Austrian Business Code ("UGB") can be extended to four months if the management is not capable of preparing them in time (within the first five months of the financial year) due to the COVID-19 pandemic (Section 3a para 1 COVID-19-GesG). The adoption of annual financial statements of Austrian limited liability companies by their shareholders must take place within twelve months of the financial year, in the regular financial year therefore until December 31, 2020 (Section 2 para 3 COVID-19-GesG). Accordingly, the disclosure period pursuant to Section 277 UGB has been extended; therefore, annual financial statements must be submitted to the commercial register within 12 months of the financial year (Section 3a para 1 COVID-19-GesG). Specific periods stipulated in articles of association or in statutes have also been suspended (Section 2 para 4 COVID-19-GesG).
Finally, as a consequence, Annual General Meetings of stock corporations and Annual General Meetings of limited liability companies no longer have to take place in the first eight months of the financial year (Section 104 para 1 Austrian Stock Corporations Act - "AktG", Section 35 para 1 no. 1 Austrian Act on Limited Liability Companies -"GmbHG"), but rather it is sufficient if they are held in the first twelve months of the financial year (Section 2 para 1 COVID-19-GesG).
Since meetings under corporate law will also be necessary in times of crisis (one only has to think of the provisions in Section 36 para 2 GmbHG, or the rights of minority shareholders in Section 37 para 1 GmbHG or Section 105 para 3 GmbHG, or any necessary amendments to the articles of association or statutes falling within the competence of the shareholders, etc.) the corresponding Ordinance, which describes the more detailed form of virtual meetings, was eagerly awaited.
This Ordinance basically specifies that a virtual meeting is permitted if it is possible to participate in the meeting from any location by means of an audio and visual two-way connection in real time (i.e. typically via videoconference). Each participant must have the opportunity to speak and participate when voting. In addition, it is now possible to participate in the meeting only via an audio connection (such as a telephone connection) if individual participants do not have the technical means for a video conference or cannot or do not want to use these means. However, no more than half of all participants can make use of this simplification. In the notice convening the meeting, the chairman has to state which organisational and technical requirements are necessary to participate in the virtual meeting.
Special provisions exist for General Meetings of stock corporations and General Assemblies of cooperatives and associations in order to ensure that the regularly large number of participants in such companies is taken into account. In the case of stock corporations, the possibility of attending the meeting from any location by means of audio and visual connection in real time is sufficient, whereby the individual shareholder can only follow the course of the meeting, but has to be enabled in another way to make requests to speak and vote during the meeting. In the case of listed stock corporations and stock corporations with more than 50 shareholders, the company may stipulate that exercising shareholders' rights at the virtual General Meeting can only be arranged via proxies. For this purpose, the company must propose at least four suitable and independent persons as proxies - at least two of them must be lawyers or notaries - from whom the shareholders can then choose a proxy.
In connection with the holding of virtual meetings, reference should also be made to Section 90a Austrian Notarial Regulations Act ("NO"), which was recently introduced with the 4th Austrian COVID-19 Act (Federal Law Gazette I No. 24/2020). Accordingly, official notarial acts (which are also often required in the course of meetings under corporate law), such as the preparation of a notarial deed, notarised minutes or notarial certification, should also be possible - with analogous application of Section 69 b para 2 and 3 and Section 79 para 9 NO - by using electronic means of communication (Section 69b NO).
With the aforementioned new legislative and judicial initiatives, companies are to be given the flexibility to hold meetings in an orderly manner even in times of crisis. The following weeks and months will show whether these new possibilities will be used as expected, if these regulations are sufficient or if more restrictive measures will be necessary in the future.
If you have any questions regarding corporate law issues in connection with the Covid-19 pandemic crisis, our attorneys at wkk law Prof. Dr. Georg Eckert (firstname.lastname@example.org), Dr. Nikolaus Adensamer (email@example.com) and associate Mag. Maximilian Breisch (firstname.lastname@example.org) will be pleased to provide you with legal expertise at any time. In the next issue of Zeitschrift für Gesellschafts- und Unternehmensrecht (GesRZ - Journal for Corporate and Business Law) we will publish a detailed article on the newly created possibilities in connection with corporate law meetings, which result in various problematic situations.
 Federal Law Gazette II No. 140/2020: 140th Ordinance of the Federal Minister of Justice for more detailed regulation of the conduct of corporate law meetings without the physical presence of the participants and of resolutions in another way dated April 8, 2020.