COVID-19: what are the flexibility measures for IORPs?

Yesterday, the Belgian Chamber of Representatives has adopted the legislative proposal on exceptional measures for institutions for occupational retirement provision (IORPs) in the context of the COVID-19 pandemic. This proposal provides a solution to a number of practical difficulties that IORPs face because of this pandemic.

1.    Delay of reporting obligations by 2 months 

Firstly, the reporting obligations for the financial year 2019 can be delayed with two months. In particular, the following deadlines now apply to the documents to be submitted to the FSMA and the NBB:

• The annual accounts, the annual report of the board of directors and the report of the statutory auditor must be submitted to the FSMA at the latest 31 August 2020 (instead of 30 June 2020);
• The annual accounts, the annual report, the report of the statutory auditor and a document containing the names of the directors and the statutory auditor(s) must be filed with the NBB at the latest on 30 September 2020 (instead of 31 July 2020).

2.    Flexibility in decision-making

In addition, the decision-making of the general meeting and the operational bodies of IORPs can be made more flexible. It is important that the IORP’s can apply these flexible measures, even if the IORP's articles of association would not permit them.

For the meeting of the general assembly, following possibilities exist:

• The ordinary general assembly may be delayed until at the latest 31 August 2020 (i.e. the latest date on which the annual accounts and the annual report must be approved and submitted to the FSMA). This also applies to the general assemblies that have already been announced, but have not yet taken place. In this case, the members of the general assembly must of course be informed;
• The general assembly may be organized remotely, e.g. by videoconference. Physical meetings could in principle be organized, but in that case social distancing must of course be guaranteed;
• The board of directors may decide that members may only vote remotely, possibly in combination with voting by proxy (under the same modalities as provided for in the IORP's articles of association). The forms for remote voting and the proxies will be sent to the IORP at the indicated address, if necessary only electronically. A scanned or photographed version suffices.

The board of directors and the other operational bodies may in all circumstances take written decisions insofar the decisions are made unanimously. Under current legislation, this is for instance not possible for the approval of the annual accounts. They can also deliberate and decide through electronic communication insofar of course it is possible to hold a discussion in this way.

The measures shall in principle apply from 1 March 2020 to 30 September 2020. However, these dates can still be modified by the Belgian Government.