Shareholders’ right to information and challenges to company resolutions
The case
The recent Supreme Court ruling. It deals with the issue of the shareholder’s right to information prior to the meeting, and the challenge of corporate resolutions.
This reform restricted challenges to resolutions based on infringement of the right to information to cases where the incorrect or missing information “would have been essential” for the reasonable exercise by the average shareholder or shareholder of voting or other participation rights.
The High Court, in its ruling, analyses a case in which the shareholder challenged the resolutions adopted at an ordinary general meeting on the grounds that they had not been provided to him:
- the list of daily sales during the financial year, in each of the sales outlets, and
- the payrolls of each of the employees, also for the same financial year.
Other documentary requests were met. However, although this information was not provided as requested, we will see that it was made available, thus fully safeguarding the member’s right to information.
The resolution recalls how the current wording of the rule requires that a “relevance test” be passed, which consists of establishing and verifying the essential nature of the information that has not been provided, or that has been provided incompletely, and that the information will be considered essential insofar as it is, with the burden of proving its essentiality falling on the challenging shareholder.
It is interesting how the Supreme Court recalls that there could be useful or relevant information, but that it cannot be qualified as essential for the exercise of the participation rights, so that its deficient provision would not allow to challenge the agreements on the basis of the infringement of the right to information.
The three guidelines that can be deduced from the decision, and which we will have to take into account when outlining our challenge actions:
- The administrator is not obliged to produce documents in the form requested by the shareholder if this information can be accessed through existing documents/supports.
- They must take into consideration everything that “could be accessed” with this examination at the registered office.
- The challenging shareholder must bear in mind the burden of proof that he has to prove the essential nature of the information and, based on the definition of our High Court, prove the impairment of his deliberation and voting on the resolutions, how he has been deprived in this exercise of his participatory rights.
If you have any doubts about this subject, please do not hesitate to contact us by telephone, Núria Martí or by e-mail at nmg@btsasociados.com, we will be delighted to help you.