In case 6 Ob 166/19h – CERHA HEMPEL was involved in the proceedings – the Supreme Court defended the comprehensive right of a shareholder of a limited liability company to information.
Although established case-law says that every shareholder of a limited liability company has a general and comprehensive right to information vis-à-vis the company, a shareholder of a limited liability company – represented by CERHA HEMPEL – was denied such information in a specific dispute. The limited liability company raised competition law concerns to justify the grounds for this refusal because the shareholder and the company are (albeit only distantly) in competition with one another (see also our blog examining case 6 Ob 105/19p).
While the court of appeal rejected the shareholder's application, the Supreme Court reversed this decision by stating that a right to information does indeed exist. Since the entry into force of the Reform Act on Partnerships under Civil Law (GesbR-Reformgesetz), this claim can be derived from Sections 1194 in conjunction with 1175 para. 4 of the Austrian Civil Code.
The company may (only) refuse to provide the information requested if doing so is in violation of a legal prohibition or if the exercise of the right to information constitutes an abuse of rights. It is true that the violation of a legal prohibition can also take the form of a competing shareholder requesting access to information that is considered relevant to competition if this constitutes an infringement of the ban on cartels. However, even then the shareholder in question may still engage an expert bound to secrecy (vis-à-vis the shareholder) who exercises the right of inspection on the shareholder's behalf and then informs the latter of his opinion after inspecting the information, without reporting back to him any details or content.
The company wishing to refuse to provide the information requested must make and prove specific assertions with regard to the danger of providing, and the competitive relevance of, the disputed documents to be inspected. If the request only concerns aggregated figures and does not relate to detailed information, the company would have to explain in sufficient detail what effect this information would have on competition.