Information Law Partner
The right to information is inherent and essential partners to the status of a participant in a company.
Its regulation is basically contains the Corporations Act, Articles 196 for limited partnerships and 197 for corporations.
Article 196 Right to information in the limited liability company
1. The partners of the limited liability company may request in writing, prior to the meeting of the general meeting or verbally during the same, the reports or clarifications they deem necessary regarding the items on the agenda.
2. The board is obliged to provide, in oral or written form in accordance with the timing and nature of the information requested, except in cases where, the judgment of the court itself, advertising it harms the public interest.
3. There shall be no denial of information when the request is supported by shareholders representing, at least, twenty-five percent of the share capital.
Article 197 Right to information in the corporation
1. Until the seventh day prior to the scheduled date of the meeting, shareholders may request from Directors any information or clarification they deem necessary regarding the items on the agenda, or ask written questions that they consider relevant.
Managers will be required to provide the information in writing until the day of holding the general meeting.
2. During the holding of the general meeting, the company's shareholders may verbally request any information or clarifications they deem appropriate regarding the matters on the agenda. If the shareholder could not meet at that time, managers will be required to provide the information requested in writing, within seven days after the completion of the board.
3. Managers will be required to provide the information requested under the two preceding paragraphs, unless that information is unnecessary for the protection of the rights of the partner, or there are objective reasons to believe that it could be used for advertising purposes or extrasocial harm to the company or its affiliated companies.
4. The information requested may not be refused when the request is supported by shareholders representing, at least, twenty-five percent of the share capital. The statutes may set a lower percentage, wherever it exceeds five percent of the share capital.
5. The violation of the right to information referred to in paragraph 2 only entitle the shareholder to enforce the information obligation and the damages that he may have caused, but it will not be challenging because of the general meeting.
6. In the event of abusive or harmful use of the requested information, the partner shall be liable for damages.
Reading thereof, it is clear that the demarcation of the information you can give, is far from clear its refusal to allow limited partnerships if we consider that might harm the public interest ("Except in cases where, the judgment of the court itself, advertising it harm the social interest ").
For his part, Article 197 LSC for corporations, also it includes possibility to refuse information if deemed unnecessary for the protection of the rights of the partner or there is reason to believe that it can make a bad use of such information or may harm the company itself or its related companies.
On the other hand, Article 272 LSC collects right of shareholders to obtain documents that must be submitted to the General Meeting to approve the accounts and the management report and the report of the auditor, in corporations. In the limited, It is required to have at least five percent of the capital to examine at the registered society, by itself or together with accountant, the documents that support and history of the annual accounts.
Last, Article 287 the LSC, provides that if call for a meeting to amend the bylaws, if it is a limited partnership, all members have the right to examine at the registered office the full text of the proposed amendment and if it is a corporation, A report on that amendment whose free delivery may be requested.
Now, the question arises as to determine the effects of breach of those obligations of information.
In corporations, as stated in Article 197.5 the LSC, the lack of information on the requests made during the meeting, It is not cause for challenging it, it enables shareholders to enforce the obligation of information and request, if compensation for damages. Therefore, it could only be cause for challenging the board infringement of the rights of information produced in advance of the conclusion of the general meeting.
It is not considered sufficient cause to challenge the incorrect or insufficient information unless this would have been necessary to properly exercise the right to vote (art. 204.3.b) the LSC.
In fact, to avoid delays which could affect the operation of enterprises, Article 204 in fine it provides that the essential and decisive nature of the reasons in case of dispute is resolved as an incidental question before the Committee.
In view of the difficulty in determining whether it has breached Information law partner, it will be necessary to analyze each case and review resolutions DGRN and especially the judgments of Supreme Court. And recently, it has solved one of these cases Judgment 15 July 2015 que pasamos a comentar.
D. Aquilino with her children had the 48.79% Funeraria Gijonesa society S.A. (Fugisa). The 15 December 2009 It required the Board of Fugisa to within 30 days convene an extraordinary General Meeting at which should be dealt with a number of points.
The Board of Directors, in session 28 December 2009 He agreed to convene an Extraordinary General Meeting for the day 5 March 2010 with the agenda that gathered about the points requested by D. Aquiline.
D. Aquilino and his sons brought Demand for ordinary trial against Fugisa, requesting the annulment of the Board 5 March 2010 by the board have not called in 30 days, by drafting the agenda items proposed by the players have changed, by the debate and voting on certain points of the agenda and refusing summary for having violated his right to information.
The defendant disputes society saying it was not possible to make the call before 30 days since the need to publish the announcement in the BORME, the points on the agenda do reflect the request of the requesting although not literally do, the points that were not treated were outside the jurisdiction of the board and ultimately, there was no violation of the right to information.
The Commercial Court No. 1 Oviedo partially upheld the claim stating that all the points should have been discussed, discussion and voting on the Board. However, It concludes that there should annul the board.
Fugisa lodged an appeal before the Oviedo Provincial Court upheld the appeal, reversing the judgment of the first instance. For Hearing, the right to information but it is essential and complementary instruments to allow the shareholder voting rights, but it can not be set to unlimited terms.
So D. Aquilino and his sons, resources stand trial and on appeal to the Supreme Court infringement.
Centrándonos en el recurso de casación, the infringement alleged failure to apply Article 50 to LSA (actual art. 97 the LSC). The High Court rejects the plea that Article 97 da refers to discrimination between shareholders, that is not the case. Moreover infringement alleging the jurisprudence on the right to information partner.
For the Board, the right to information It has undergone profound changes in the Act 31/2014.
In this case, a qualified minority of 48'79% having D. Aquilino and his sons, They could not be denied the requested information under the pretext that the board considered that it was not within its competence. It was a subsidiary 100% of Fugisa, so there were no objective grounds for considering that the requested information could be used for purposes contrary to extra-social or social interest.
The defendant company has not alleged any objective reason for denying information. He cites the STS 13 June 2012 to indicate that:
“[…] the aim of limiting the rights of qualified minority to propose the adoption of resolutions, vetoing those who have sought information on social issues that are not related to issues entered in the agenda made by administrators, the lee of the board is a decision-making body on matters within its competence, impermissibly would prune the autonomous right of member information -usually have more instrumental purpose in connection with the formation of the decision to vote-, and allow managers cloudiness over matters that decide not to submit to the board, ends inconsistent with the duty of transparency which manages property of others” .
Therefore, The reason is estimated resource.
However, it is not considered necessary in the notice convening the meeting a verbatim transcript of the request is made. In that sense, the judgment of the first instance that the board did not cancel but society is obliged to convene a new meeting at which matters should be dealt with had been excluded is confirmed by considering that they were not competent.
Ultimately, estimated in part the appeal and the judgment of the first instance considered the breach is confirmed right partner information.