Contact 
LEXIKON
Right to information and duty of loyalty: Implications of the Supreme Court decision 6 Ob 65/24p
Shareholders in a limited liability company (GmbH) have a duty of loyalty to the company, but also to their fellow shareholders. A key tool for this is their right to information: only those who are sufficiently informed can make well-founded decisions on resolutions. In its recent decision 6 Ob 65/24p (www.ris.bka.gv.at/jus), the Austrian Supreme Court clarified that this right can also include information about affiliated companies if it is relevant to the decision. At the same time, it also specified the scope of the duty of loyalty.
The duty of loyalty and its limits
The position of shareholder entails a duty of loyalty, not only to the company, but also to the other shareholders. It is based on the principles of good faith and fair dealing and on the requirement of good morals. In the event of a (culpable) breach of the duty of loyalty – which also applies to the exercise of voting rights at the general meeting – claims for damages are conceivable.
It may therefore also be necessary for shareholders to be obliged to approve certain resolutions on the basis of their duty of loyalty. However, such a resolution must be absolutely necessary in the interests of the company and must also be reasonable for the reluctant shareholder, as an obligation to approve is generally a last resort.
The shareholders’ right to information
The right to information of shareholders in a limited liability company (GmbH) basically covers all matters relating to the company and is an individual right to which every shareholder is entitled. This right is intended to ensure that shareholders can exercise their rights in a meaningful way and fulfill their responsibilities. However, the right to information is not unlimited: trade and business secrets or the legitimate interests of the company may, for example, preclude this.
In practice, the extent to which this right also extends to companies affiliated with the company is often disputed.
The Austrian Supreme Court has now issued a new statement on this issue.
The decision of the Austrian Supreme Court 6 Ob 65/24p
The case in question concerned, among other things, the rejection of a shareholder resolution which was intended to instruct the managing director of a limited liability company (GmbH) to disclose detailed information and documents to the shareholders concerning a public limited company (AG) in which the GmbH holds a stake.
The plaintiffs then sought to have the resolutions declared null and void, arguing that the refusal to approve the resolutions violated the shareholders’ statutory right to information and the fiduciary duties of membership.
The Supreme Court upheld the lower courts’ ruling that the right to information in this case also included information about the subsidiary (AG). Thus, the rejection decision did not interfere with the plaintiffs’ right to information, as they could have asserted their alleged claims to information about the affiliated AG themselves.
It should be noted that only information about the affiliated companies that is objectively relevant to the GmbH, which is obliged to provide information, can be requested. Therefore, the shareholder must specify in detail the information sought concerning the affiliated company and explain his legitimate interest under company law. Furthermore, the right to information concerning affiliated companies is limited to the extent that the GmbH’s right to information in the other company ends.
Significance for practice
The decision confirms that the right to information is not formally limited to the company, but must be interpreted functionally: whenever information about affiliated companies is necessary for the assessment of a resolution, it is covered by the right to information.
However, this does not mean that all shareholders are obliged to pass corresponding resolutions on the basis of their duty of loyalty, as the right to information is an individual right that can be exercised by each shareholder alone. This must be taken into account by managing directors in corporate structures, who are often subject to such information requirements.
Conclusion
The decision 6 Ob 65/24p of the Austrian Supreme Court underscores the importance of the right to information as the basis for proper decision-making and specifies the duty of loyalty in the context of corporate structures.