The shareholders of a GmbH have extensive rights of access and inspection which go beyond the general meeting and that enable them to inform themselves about what is happening within the business. These shareholder rights cannot be restricted in the articles of association. And yet, we at the commercial law firm GRP Rainer Rechtsanwälte note that even shareholders’ requests for information are subject to limitations in exceptional circumstances.
For the purposes of assessing whether the managing director must grant a shareholder the information the latter requested, it is first necessary for the managing director to determine whether the company’s interests could be harmed by the information or whether this information could be used for non-company purposes. Should the managing director come to the conclusion that, in the interests of the company, the information ought not to be granted, the final decision is not, however, his or hers to make; it is the general meeting of the shareholders that has the final word. It is essential that the managing director be aware that final decision-making authority does not rest with him or her and that misconduct may have serious consequences for them. If he or she acts on their own authority in denying access to the information, they may even render themselves liable to pay damages and their employment contract could be terminated without notice.
The general meeting of the shareholders decides whether a shareholder needs to be granted his rights of access and inspection. The shareholder requesting the information is not allowed to take part in the vote. If the general meeting of the shareholders decides that the information should not be granted, the shareholder still has the option of enforcing his rights of access and inspection in court.
A shareholder’s rights of access and inspection cover all of the company’s legal and economic activities. This includes activities and processes that have already been completed as well as projects and proposals that are still in the planning stage. The shareholder can request access to view agreements, the accounts, logs and records etc. In doing so, the shareholder can decide for him- or herself whether they wish to exercise their right of access, their right of inspection or both. The managing director is then obliged to comply with the shareholder’s request as soon as possible assuming there are no grounds for refusing access to the information or calling a general meeting of the shareholders.
Lawyers who are experienced in the field of company law can advise shareholders and managing directors.