What extent of the right to information is available to the shareholders of particular companies?

What is the right to information?

The right to information affects the transparency of the company’s processes, motivates the management to act more diligently and, on the other hand, encourages the shareholders to actively participate in the corporate life of the company. However, depending on the type of capital company, it is regulated differently.

Shareholder of a limited liability company.

The Commercial Companies Code, in Article 212, grants the broadest rights in terms of the right to information to the shareholders of a limited liability company. The shareholders of a limited liability company have the right to:

to inspect the company’s books and documents
to draw up a balance sheet for its own use
to request explanations from the company’s management

However, the above catalogue of shareholders’ rights is not exhaustive. Shareholders are left with the right to regulate their rights more broadly in the articles of association.

The mere granting of the right to information does not, however, result in the shareholder receiving this information whenever he or she requests it. In practice, it is often the case that the management board refuses to provide this information.

What options does a partner have in such a situation?

First it may request that the matter be resolved by a shareholders’ resolution and, if this does not have the desired effect, it may request a resolution before the court of registration.
For this to be possible, however, one of two requirements must be met:

– shareholders must not consent to access to information or

– the shareholders’ meeting fails to pass the relevant resolution within the statutory one-month period.

The registration court may then commit the management board to provide explanations and allow access to the company’s documents or dismiss the shareholder’s application.

Shareholder of a joint-stock company.

Article 428 § 1 of the Commercial Companies Code also entitles a shareholder of a joint-stock company to obtain information concerning the company. This information may be requested by the shareholder both during and outside the general meeting. However, the scope of the right to information is narrower in this case than for a shareholder of a limited liability company, as a shareholder may only request information to the extent that it is required for the assessment of a matter on the agenda of a specific general meeting.

As regards a joint-stock company, the management board enjoys broader powers to refuse disclosure concerning the company.

Firstly, the management board has to decline from disclosure of information if doing so could cause damage to the company, a related company or a subsidiary company or cooperative, in particular by revealing technical, commercial or organisational secrets of the company.

Secondly, a member of the management board of a joint-stock company has the right to remain silent if providing information could expose him to criminal, civil or administrative liability.

The refusal of the management board to provide information concerning the company can be reviewed by the court of registration at the request of a shareholder. To this end, however, a shareholder who has been refused disclosure of the requested information must object to the record during the general meeting. The law provides for a one-week period from the end of the general meeting to submit a request to the registry court.

Shareholder of a simple joint-stock company.

As regards a simple joint-stock company, the legislator used a hybrid solution, that is a combination of the right to information, not regulated under the limited liability company rules, and the individual right of control, not regulated under the joint-stock company rules.

Article 30097 of the Commercial Companies Code grants a shareholder of a simple joint-stock company the right to information. It is characterised as one of the basic elements of corporate governance. A shareholder of a simple joint-stock company derives this right from the solutions specific to a joint-stock company, as the aforementioned provision prescribes the appropriate application of Article 428 of the Commercial Companies Code.

Apart from the right to information, a shareholder of a simple joint-stock company also has the right of individual control. In this case, we apply, mutatis mutandis, Article 212 of the Commercial Companies Code concerning limited liability companies, which has been described above. A shareholder of a simple joint-stock company is therefore entitled accordingly:

to inspect the company’s books and documents,
to draw up a balance sheet for its use,
to request an explanation from the company’s management.

In the event of a refusal to provide information, the shareholder can act in two ways.

First, a shareholder may, as in the case of a shareholder of a joint-stock company, after objecting to the record of the general meeting, request the court of registration to commit the management board of a simple joint-stock company to provide information.

Secondly, it is entitled to exercise its right of individual control. In view of this, irrespective of the possibility of a judicial procedure, the shareholder may request that the matter be resolved by a resolution of the general shareholders’ meeting. This resolution must be adopted within one month of the date of the request. A refusal granted in the form of a resolution of the general shareholders’ meeting or the expiry of the one-month deadline for its adoption will update the right of a shareholder of a simple joint-stock company to enforce its rights before the court of registration.

The legislator’s introduction of a hybrid form of the right to information concerning the company of a shareholder of a simple joint-stock company allows him or her to realise two corporate governance instruments independent of each other. Thus, it should be considered that it is in the case of a simple joint stock company that the scope of access to information about the company has been regulated most broadly and most favourably from the shareholder’s point of view.

Jarosław Rudy, Attorney at Law

Gabriela Walczak, Legal Assistant

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