THE PARTNER’S RIGHT TO INFORMATION

The shareholder’s right to information is an essential, imperative and inalienable right that acts as an essential guarantee at the corporate level, since it allows shareholders access to relevant information on the company and, in particular, on the management carried out by the administrative body.

In relation to the foregoing, the Courts have recognized that the right to information is not configured as an instrumental right for the exercise of the voting right of the shareholder, but has been granted a notable transcendence in the exercise of other rights such as the right of preferential assumption, the right of separation, as well as for the supervision and censorship of the corporate management.

Regarding its regulation and direct application in the notice of the general meeting, Article 287 of the Capital Companies Act guarantees the same by establishing that, in the notice of the general meeting, the points to be amended must be expressed with due clarity, as well as stating the right of the shareholders to examine the full text of the proposed amendment at the registered office of the company.

However, the doctrine of the General Directorate of Legal Security and Public Faith and the jurisprudence of our Supreme Court have made the rigorous and literal interpretation of this precept more flexible, also warning that, in order to analyze whether or not it has been violated and, consequently, to apply the devastating nullity of the adopted agreements, we will have to attend to the casuistry of each case of fact. In this sense, it will be understood that the right to information has not been violated in the call, in accordance with article 287 of the LSC, if the following conditions are met:

1. The notice of the call expresses the content of the amendment to the bylaws and the full content of the resolutions.
2. The partners were administrators, so they have access to the corporate and accounting documentation that serves as the basis for the agreements.
3. The omission of the mention contained in article 287 LSC does not imply as such the deprivation of the right to information.
4. According to the majority regime of the approval of the agreement, a new meeting would not alter the result of what was agreed.
5. According to the majority regime of the approval of the agreement, a new meeting would not alter the result of what was agreed.

By way of example, the very recent Resolution of April 16, 2024, of the Directorate General of Legal Security and Public Faith (“DGSJFP”), analyzes the defect in a notice of a general meeting on the grounds that it has not complied with all the required mentions of article 287 LSC by omitting the right of the shareholders to examine the full text of the proposed amendment at the registered office of the company. It should be noted that, in the specific case, the three partners were, in turn, joint and several administrators of the company, so that the possibility of all of them having access to the relevant corporate and accounting documentation is accredited.

In application of a more flexible criterion of the literal wording of article 287 LSC, the DGSJFP upholds the appeal against the qualification of the commercial registrar, which alleged violation of the right to information of the shareholder due to the omission of the referred mention, as it understands the following in accordance with the referred doctrine:

1. The defects in the call are of a purely formal nature.
2. Low relevance with respect to the call as a whole.
3. The right to information has been respected in the call for applications, but not sufficiently.
4. The right to information is reflected in the call but not sufficiently.
5. The omission of the means to enforce the right of information in the call does not deprive the exercise of this right.
6. The outcome of the vote on the resolution will presumably not be affected at a new general meeting.

Therefore, in order to understand whether there has been an effective violation of the shareholder’s right to information in the notice of the general meeting, in accordance with article 287 LSC, we will have to consider each factual situation, and in no case can a possible omission imply a violation with the effects that the nullity of the resolution affected by it would bring with it.

At Grupo Alcazar we have a team specialized in corporate law at your disposal to offer you personalized advice in the daily management of corporate life.