Preemption of a shareholder's right to information in a limited liability company and the company's obligation to provide the information requested by the shareholder (also critical comment on the Supreme Court judgment 27 Cdo 1385/2022)
Abstract
In its judgment of 22 November 2022, Case No. 27 Cdo 1385/2022, the Supreme Court concluded that the information rights of a shareholder of a limited liability company are time-barred. The Court concluded that the limitation period provided for in Section 156(2) of the Companies Act applies not only to the denial of information rights on the grounds set out in Section 156(1) of the Companies Act (classified information and information in the public domain), but also to other cases in which the company has refused, for any reason (or no reason), to provide the shareholder with the requested information or to allow inspection of the company's documents. In this article, I critically analyse the decision.
In particular, I argue that the Supreme Court's interpretation creates unjustified differences between the information rights of a member of a limited liability company and those of a partner in a partnership or a silent partner, i.e. persons with similar information rights. I also argue that the conclusion that the information rights of a member of a limited liability company are excluded cannot apply without exception.
I submit that a member of a limited liability company must always be granted (i) the information rights necessary for the exercise of his inalienable control rights and (ii) the right to be informed of the matters discussed at the general meeting. In the second part of this article, I consider whether a limited liability company may refuse a shareholder's request for information or inspection of a document if the limited liability company does not have the requested information or document.
I conclude that if a shareholder requests certain information and the private limited company does not have the information, it is in principle obliged to obtain it. On the other hand, if a member of a limited liability company requests to see a document that the company does not have, the company may refuse the member's request to see the document.