The shareholder’s right to information and its limits

According to § 51a Para. 1 GmbHG, every shareholder must be provided with information on the company’s affairs immediately upon request. This right to information is in the interests of the shareholder. As a rule, the managing directors of a GmbH must provide this information. However, the shareholder’s right to information also has its limits. The decision of the Regional Court of Hanover of 21 February 2024 – 23 O 4/24 – contains such a borderline case.

Decision of the Regional Court of Hanover

What is it all about?

With a two-thirds majority, the general meeting of the German Football League („DFL“) voted in favour of the possibility of the League becoming an investor. There were indications that Martin Kind, as managing director of a limited liability company that acts as general partner of Hannover 96 GmbH & Co KGaA, also voted in favour of this deal. The explosive aspect of this is that the sole shareholder of the GmbH, Hannoversche Sportverein von 1896 e.V. („e.V.“), instructed Mr Kind in advance to vote „no“ at the DFL. Mr Kind refused to disclose his voting behaviour. The e.V. attempted to enforce the disclosure in court proceedings pursuant to § 51b GmbHG.

The decision

The Regional Court of Hanover denied such a claim on the grounds that the e.V.’s request was an abuse of rights and therefore in breach of Section 242 BGB. This is astonishing. The e.V. is the sole shareholder of the GmbH. Why should a sole shareholder not receive information about „his“ GmbH? The Regional Court of Hanover feared that Hannover 96 GmbH & Co KGaA could no longer be „capable of contracting“ if Mr Kind were to disclose the information and the e. V. were to make this public. The GmbH does not stand alone, it is the general partner of that KGaA. Its information therefore also directly affects the interests of the KGaA.

This point cannot be completely dismissed out of hand. However, it only applies to this individ-ual case with a shareholder of a general partner, which in turn has thousands of members and where confidentiality is not possible. In the case of a sole shareholder without its own „large“ group of shareholders, this problem could be regulated by a confidentiality agreement with a contractual penalty. However, the decision gives cause to question the overall limits of the shareholder’s right to information.

The limits of the information claim

The right of refusal pursuant to section 51a (2) sentence 1 GmbHG

The managing directors may refuse to provide information if it can be assumed that the share-holder will use the information for purposes unrelated to the company and thereby cause a not inconsiderable disadvantage to the company or an affiliated company. A non-company purpose can be assumed if the intended purpose does not serve the shareholder’s membership interests or the promotion of the company’s interests. Furthermore, the refusal requires a res-olution of the shareholders pursuant to § 51a para. 2 sentence 2 GmbHG. This was lacking in

the case of the Regional Court of Hanover. The Regional Court of Hanover therefore did not need to examine this exception under the law.

Unwritten boundaries

In addition to the right of refusal pursuant to § 51a para. 2 sentence 1 GmbHG, the right to information is subject to inherent limitations. These restrictions are characterised by the fact that no shareholder resolution is required.

The duty of loyalty under company law

The duty of loyalty under company law also imposes restrictions on the shareholder when exercising his right to information. Exercising the right to information leads to an encroachment on the company’s legal sphere. The shareholder is therefore bound by the principles of pro-portionality when exercising his right due to his fiduciary duty towards the company. It is not necessary to exercise the right if the shareholder already has the requested information or does not demonstrably need the knowledge to properly exercise their membership rights.

An-other case of application is the ability of a company to enter into a contract, as mentioned by Hanover Regional Court. In exceptional cases, managing directors may refuse to provide information if the company is no longer able to enter into legal transactions. The demarcation is difficult. Particularly in joint venture structures such as Hannover 96 GmbH & Co KGaA (Mr Kind controls the KGaA; the e.V. controls the GmbH), the managing director of the GmbH could qualify almost any important transaction as sensitive.

Impossibility according to § 275 BGB

The right to information is excluded pursuant to Section 275 BGB if the company does not have the requested information and cannot reasonably obtain it for legal or factual reasons.

Criminal liability for providing information

There is also a reason for refusing to provide information if the managing director would make himself liable to prosecution or behave in an irregular manner by providing the information. Such criminal liability may arise from Section 203 StGB. According to § 203 StGB, the violation of certain private secrets is punishable. However, such a case will rarely occur, as society does not usually know private secrets. People know private secrets. The scope of the right to information pursuant to Section 51a GmbHG therefore does not apply if the managing director is aware of private secrets of third parties that are worthy of protection. Of course, he does not have to disclose these either.

Pursuant to Section 85 (1) GmbHG, anyone who discloses a secret of the company, namely a trade or business secret that has become known to them in their capacity as managing director, member of the supervisory board or liquidator, without authorisation is liable to prosecution. A managing director cannot hold this possible criminal liability against the shareholder. Otherwise, the shareholder’s right to information would not be enforceable, as almost any information of the company can be a trade secret.

Data protection

The situation is more difficult when it comes to data protection. The disclosure of documents is generally a processing of data within the meaning of Art. 4 No. 2 GDPR. The processing of data is generally permitted in accordance with Art. 6 para. 1 lit. c) GDPR if it is necessary for the fulfilment of a legal obligation. The obligation to disclose pursuant to Section 51a GmbHG constitutes the fulfilment of a legal obligation.

Since business documents almost always con-tain personal data in accordance with Art. 9 GDPR, Art. 9 para. 2 lit. f) GDPR must also be taken into account. According to Art. 9 para. 2 lit. f) GDPR, the processing of personal data is permitted if it is necessary for the establishment, exercise or defence of legal claims. Section 51a GmbHG also provides justification in this respect. Nevertheless, increased caution is re-quired if the data is highly sensitive, such as customer health data. Both shareholders and managing directors must keep an eye on this issue.

The author of this article will be happy to answer any questions you may have regarding the right to information pursuant to Section 51a GmbHG and help you assert your interests.

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Authors: Dr. Andreas Menkel, Florian Wenzel