07 Jun THE RIGHT OF INFORMATION
In the post of this week we are going to analyze in more detail the “Right of information” of the partners in the Capital Companies. It appears recognized in a general manner in article 93 of the Capital Companies Law (“LSC hereafter) and is regulated differently for the so-called “sociedades limitadas” (art. 196 LSC) and for the “sociedades anónimas” (197 LSC)
Article 196 LSC recognizes the right to Partners to request information, prior to the meeting of the general meeting or orally during the celebration of the same, in terms that we could qualify as generic. On the other hand, in the case of the “Sociedades Anónimas”, its regulation is more detailed.
For years, it has been considered that the Right of Information of the partners of a capital company was limited only to access to those documents that were entitled to obtain according to the law itself. We would find among this documentation, for example, the annual accounts.
In practice, this meant that the partner was able to ask questions and request clarifications that he deemed appropriate, but he was not able to entitled to dispose additional documentation in order to verify the explanations facilitate by the boards of directors (Except in the cases of the “Sociedades Limitadas”, wherein those partners who own 5%of the shares, have the right to examine the accounting at the company’s registered office.
This conception of the information Right has undergone an intense evolution in recent years, especially since 2010 and 2011. Faced with the classic conception of the Information Right as a purely instrumental right and linked to the exercise of the right to vote, the Supreme Court tried to overcome this conception, endowing the aforementioned right of autonomy and own substantively, and culminating this line of case-law with the Supreme Court Judgment of September 19, 2013.
This new line of case-law stand up for the idea of an autonomous right that goes one step beyond the traditional “right of question”, including now the possibility of requesting documentation as long as it is related to the matters included in the meeting agenda.
The aforementioned Judgment include within the right of information “those documents consisting of accounting media, banking and fiscal documentation of the company …” and justifies it alleging that “the partner may need to know some additional accounting data.
This does not mean that it is about an unlimited right. As the aforementioned Judgment states, in order to be possible exercise the right of information a series of requirements must be fulfilled; because as the aforementioned judgment states, in order to be exercised
- its exercise must be related to the meeting Agenda
- must be exercised in a timely manner
- It shall not be contrary to the social interest
- there is no permitted an abusive exercise of the right
In practice, the use of this right of information leads to real headaches in the companies where there are certain power struggles between the majority partners, which try to assert their majority status to prevent minorities from accessing to the board of directors and the minority, which sometimes tries to use the aforementioned right with the sole objective of hindering the progress of the company.
It is here where an important question arises, to what extent can the partners come to request the use of this right?
It is a subject with a marked casuistic nature, wherein it would be imprudent to give a single solution. It would be necessary to solve each case according to the specific characteristics of each situation: volume of information requested, the moment when it is carried out the request or the availability to be delivered the information requested
All this in order to analyze whether the applicant partner wishes to carry out a control with respect to the management of the company and to know in detail the progress of the same or if on the contrary its sole objective is to hinder the company’s progress (
At Navarro Llima Abogados, we have a team of highly qualified lawyers specialized in company law. If you have any questions thereon, please do not hesitate to contact us
Javier Navarro Lacambra