Dr Eduardo Bercún
I. LIMITATIONS TO OPERATION ACCORDING TO ACTIVITY
The possibilities of corporate and associative functioning vary substantially depending on whether or not the organization's activity is exempt from the Social, Preventive and Compulsory Isolation (ASPO) imposed as of Decree 297/2020 and currently governed by Decree 493/2020 of 24th May 2020.
It discriminates between three large areas: Population with up to 500,000 inhabitants, Population with more than 500,000 inhabitants and the Buenos Aires Metropolitan Area (AMBA).
It also establishes activities considered "essential", allows the carrying out of "industrial, service or commercial activities" in accordance with protocols already authorized or to be authorized, and maintains activities strictly prohibited throughout the country.
However, even within the authorized activities, the movement of people must be limited to the strict compliance with said activity (art. 9º Dec. 459/2020).
II.- MANAGING AND GOVERNING BODY OPERATIONS
- BOARD OF DIRECTORS MEETING, SHAREHOLDERS MEETING AND MEETINGS
1.1 Limitations for face-to-face meetings
In organizations with essential or authorized activity, face-to-face meetings of the Board of Directors, Shareholders meeting, etc. may be held, provided that the meeting is necessary for the development of the activities.
In companies and associations with unauthorized or prohibited activity, face-to-face meetings of the administrative body may not be held.
In no case may meetings of shareholders or associates be held in person.
1.2 Virtual meetings
To make possible to hold Shareholders meeting without violating the ASPO or putting the participants in a risk, both the General Inspectorate of Justice and the National Securities Commission have issued provisions so that the governing body can meet in virtual form (General Resolution IGJ 11 / 2020 and General Resolution CNV 830/2020).
The system by means of which the assemblies of societies, associations and foundations are held must guarantee: a) the free accessibility of all the participants to the meetings; b) the possibility of participating in the meeting remotely through platforms that allow the simultaneous transmission of audio and video; c) the participation with voice and vote of all the members and of the inspection body, if applicable; d) that the meeting held in this way be recorded on digital media; e) That the legal representative of the company keep a digital copy of the meeting for a term of 5 years, which must be available to any partner or associate who requests it; f) That the meeting held be transcribed in the corresponding social book, leaving express record of the people who participated and be subscribed by the legal representative; g) That way of communication and the access to virtual sessions must be established in the meeting call in order to provide the proper participation.
- CALLS AND EDICTS
Post Office continues to function as an essential activity, making possible to make citations and communications by post.
The Official Bulletin normally works through the virtual delegation and it is also possible to publish edicts in newspapers with wide circulation because they are also excepted.
- GRANTING OF POWERS OF ATTORNEY
As of 05.12.2020, notarial activity is enabled in the city of Buenos Aires, which enables the granting power of attorney for participation in assemblies or the exercise of corporate rights –which is subject to the restrictions of notarial activity-.
In addition, we must take into account that the power of attorney to participate in assemblies can be granted with bank certification, if the bank agrees to provide that service.
- RIGHT TO INFORMATION
In the event that a meeting is called to discuss the balance, the shareholder's right to information must be respected. The provision of the report and the financial statements can be made by uploading them to a website from which they can be downloaded or sending by email to the shareholders who request it.
The information that the shareholders reasonably request from the managers or the trustee, as the case may be, must also be provided by digital means.
- IMPACT OF THE CRISIS ON THE BALANCES CLOSED BEFORE MARCH 2020
The consequences of the Covid-19 crisis on the company, although it does not have an impact on the figures of the financial statements of previous years, should be reported in notes as a relevant event after the closing. The impact of the crisis on the business will involve evaluating if the "going concern" hypothesis is verified and if the company can continue in the business for the foreseeable future.
XLNC ARCHIVE | 05 June 2020