The abusive exercise of the shareholder’s right to information
The shareholder’s right to information is recognised in Spain in a generic way in article 93.d) of the Capital Companies law, as well as in other precepts. In its most practical aspect, it translates to the right to question, that is, the right of the shareholder to request clarifications or ask questions about the matters included in the agenda of the General Meeting of the company.
However, like any other subjective right, the shareholder’s right to information within a company is by no means unlimited or absolute. It is subject to the general rules and principles of law, and therefore, must be exercised in accordance with the requirements of good faith and without abusing the right. The Spanish Supreme Court has ruled on this issue on multiple occasions (among others Judgment 666/2002 on 2nd July 2002 (RJ 2002\5834); Judgment 1169/2000 on 21st December 2000, (RJ 2001/1082); Judgment 455/2001 on 16th May 2001 (RJ\2001\6212); and Judgment y 21/2005 on 28th January 2005 (RJ 2005\1829).
Therefore, it is not admissible for the shareholder to make any type of request: he or she cannot demand any information on any matter at any time. Thus, according to the doctrine of the Supreme Court:
- The request for information must have a reasonable connection with some point of the agenda of the corresponding General Meeting
- The request for information must be carried out at the right time and not in an untimely manner
- The request for information should not harm corporate interests (for example, when it is strategic and confidential information of the company)
- The request for information must be exercised in a non-abusive manner.
Some criteria that can be considered when determining if the exercise of the right to information is carried out in an abusive manner includes: if the same request has been previously answered in the past, the lack of explanation or reasonable justification about the importance of the information to the shareholder, the level of detail and thoroughness of the information requested, the attitude of inspection and control by the shareholder, if the request for information is made in a closed or family type company, or on the contrary in a open company and with greater liquidity.
From the above, it is understood that the delivery by the management body of the company of the information requested by the shareholder is not in any way an automatic obligation, even less when the right to information is exercised incorrectly or with abuse. In these circumstances, the refusal to provide information by the management body will be understood as legitimate in the company’s interest.
Moreover, the systematic and disproportionate attitude of harassment promoted by any shareholder against the management body, or the obstruction to the ordinary business of the company activity through the right to information – which usually results in unnecessary expenses or loss of time – can constitute a liability for the shareholder for the damages and losses caused to the company.
If you wish to know more about the shareholder’s right to information in commercial companies, do not hesitate to contact us.
This article is not considered as legal advice