Act on exceptional measures for Institutions for Occupational Retirement Provision (IORPs) due to the Corona crisis
As a result of the Covid-19 pandemic, pension funds or institutions for occupational retirement provision (IORPs) may face practical difficulties in meeting their reporting obligation towards the FSMA and the NBB, which must be met within a strict time-frame. Due to the quarantine measures, IORPs also face a challenge in organising their annual meeting of the general assembly, as well as the meetings of the board of directors. An additional legislative initiative was needed to grant the IORPs a postponement of the reporting obligations for financial year 2019 towards the FSMA and the NBB and to give them flexibility in organising the meetings of the general assembly and the board of directors in these exceptional circumstances. On 26 May 2020, the Act of 14 May 2020 on exceptional measures for IORPs in the framework of the Covid-19 pandemic was published in the Belgian State Gazette.
Based on the special powers decree (n° 4) of 9 April 2020, IORPs could already organise their general assembly and board of directors meetings “remotely” by means of tele or videoconferencing, even if this was not provided for in the by-laws (see Corona newsletter ). Following the modifications to the European reporting deadlines, the FSMA had already granted the IORPs a postponement for the national prudential reporting (e.g., P40 reporting and statistics) until 11 August 2020.
The Act of 14 May 2020 now also grants the IORPs a two-month extension (until 31 August 2020 instead of 30 June 2020) to submit their annual accounts, annual report and the report of the external auditor for the financial year 2019 to the FSMA. By extension, the IORPs have until 30 September 2020 (instead of 31 July 2020) to submit these documents to the NBB.
In addition, the Act introduces three temporary relaxations for organising general assembly meetings. First, it is possible to postpone the ordinary general assembly meeting until 31 August, even if the general assembly has already been convened, and without having to re-apply the formalities for convening and participation. Of course, the IORP must inform the members and other persons entitled to participate in the general assembly of the postponement. Furthermore, the Act reaffirms that it is permitted to organise the general assembly meeting “remotely” by means of tele- or videoconference. A third relaxation allows the board of directors to decide that members of the general assembly may only vote remotely prior to the general assembly meeting by means of a form or through a website, whether or not in combination with proxy voting (under the same modalities as set out in the by-laws of the IORP). In this case, the forms and proxies must be signed and returned to the IORP, which can be done by means of a scanned or photographed form/proxy.
Finally, a number of temporary relaxations also apply to the holding and organisation of meetings of the board of directors and other operational bodies. In this way, any decision of the board of directors can temporarily be adopted by unanimous written decision, even the approval of the annual accounts of financial year 2019. In addition, any board of directors meeting or meeting of other operational body may be held by video- or teleconferencing, provided that it allows joint deliberation.
These measures apply for the period from 1 March to 30 September 2020. The expiry date may be extended by Royal Decree if necessary. However, the additional relaxations do not apply to board of directors or general assembly meetings which have already taken place since 1 March in accordance with the rules applicable before the entry into force of this Act.
Action point
A postponement of the reporting obligation for the financial year 2019 can help if the IORP, as a result of the Covid-19 pandemic, is not able to complete everything by 30 June 2020. If the annual general assembly meeting has not yet taken place, IORPs should consider how they wish to organise it or whether they wish to postpone it. Until 30 September 2020, the board of directors can decide by unanimous written decision or can validly meet by tele- or videoconference, even if the articles of association do not allow this.