The partners or shareholders, in their capacity as owners of the company in an aliquot proportion to the contributed capital, have certain obligations and rights. Among the rights recognized by the Capital Companies Law (“LSC”), is the right to information.
The right to information is provided for in article 93 of the LSC and is regulated separately for the Limited Liability Company (“SL”) (article 196 LSC) and for the Public Limited Company (“SA”) (article 197 LSC) . It is a minimum, non-derogable and inalienable right, which means that not even the Bylaws may restrict the partner’s right to information with respect to what is established in the Law.
The Supreme Court, in its Judgment of November 12, 2014, determined the purpose, scope, and importance of the right to information, establishing the following: “In general, the right to information is justified by the relevance that whoever is integrated in a commercial company, as a partner thereof, and has invested part of their assets in the social capital, may have knowledge of how it is being managed and managing the company so that in this way it can adopt the pertinent decisions in a well-founded manner (voting of resolutions in the social meetings, demand of responsibility from the administrators, sale of their participation in the company, etc.). This justification becomes more intense if the characteristics of the company hinder the sale of its participation in the capital stock ”.
In accordance with the provisions of the Law, the content of the right to information of the partners, both in the SL and in the SA, translates into the following:
- Right of access, from the call of the General Meeting, to the documents that are going to be submitted for approval at the Meeting.
- Right to have reference to this right of documentary access in the call for the General Meeting.
- Possibility of requesting information or clarifications and asking questions before and during the General Meeting regarding the items on the agenda.
Regarding its regulation, in the SL, the right of the partners to request the reports or clarifications that they deem necessary about the matters included in the agenda, in writing, before the Meeting or verbally, during its celebration is recognized. . The management body must provide the information orally or in writing according to the time and nature of the information requested.
In the SA, it is established that the right to information prior to the Meeting must be exercised until the seventh day prior to the day scheduled for the Meeting and the administrators must provide the information in writing until the day of the Meeting. . Regarding the exercise of the right during the Meeting, the possibility of providing the information concerned within seven days after the end of the Meeting is contemplated if it is not possible to provide it at the Meeting itself.
In both companies, the administrators will deny the information for justified cause to protect the social interest, unless the request comes from partners with 25% of the capital or a higher percentage. In the case of SAs, their Bylaws may determine a percentage lower than 25%, but higher than 5%.
Another of the differences in the regulation of the right to information in an SL and in a SA is the following:
- In the SL, according to article 272.3 LSC, the shareholders who own at least 5% of the capital of a SL have the right to an examination at the registered office, assisted by an accounting expert, of the documents that serve as support and background of the accounts annual, which is not possible in the case of a SA However, this right to examination may be excluded in the Bylaws of any SL
- In the SA, pursuant to article 172 LSC, the shareholders holding 5% may request the supplement to the call for the General Meeting, including new items on the agenda. The request must be made within the first five days from the call and the supplement must be published 15 days before the meeting.
In relation to the right to information and the possible challenge of corporate resolutions, article 197.5 relative to the SA establishes that “ the violation of the right to information provided for in section 2 (the one exercised during the meeting) will only empower the shareholder to demand the compliance with the obligation of information and the damages that may have been caused, but will not be cause for challenge by the general meeting ”.
In the section of the SL, there is no similar regulation in this regard, however, article 204.3 b) LSC establishes that the challenge of corporate agreements based on “ the incorrectness or insufficiency of the information provided by the company in response to the exercise of the right to information prior to the meeting, unless the incorrect or non-provided information had been essential for the reasonable exercise by the shareholder or average partner, of the right to vote or of any of the other participation rights“In this sense, it follows from the aforementioned article that the challenge of corporate resolutions for infringement of the right to information is only possible in cases of exercise prior to the meeting and only, in addition, when the information would have been essential for the adoption of the sense of the vote or participation by the partner or shareholder involved. “. In addition, the rule of article 204.3 b) LSC is common for the two types of companies, this is understood from the reference to the “ shareholder or average partner ”.
Finally, it should be noted that the right to information is not unlimited since its exercise must be related to the order of the day, it must be carried out in a timely manner, social interest cannot be contrary, and there is no abusive exercise of it. same. That is why the aforementioned limits have been and are being developed in our Jurisprudence.