In a GmbH, the managing directors are responsible for ordinary business operations. In particular in larger companies, the shareholders often limit themselves to exceptional measures and the annual decision to use profits. Therefore, a legal instrument is required to help shareholders maintain an overview of the company’s operations. Various information rights of shareholders serve for this purpose. Above all, the right of access and the right of insight offer GmbH shareholders comprehensive information possibilities.

The purpose of information rights under company law is to enable each shareholder to obtain the necessary information about the GmbH. The information right explicitly regulated in § 51a GmbHG consists of two separate claims. On the one hand, there is the right to information in corporate matters. On the other hand, shareholders are also entitled to inspect the company’s books and writings. First and foremost, these information rights serve as a basis for participation in the decisions regarding the GmbH made by the shareholders’ meeting. Equally important are the right of access and the right of access in the enforcement of minority rights in society.

Due to these essential functions, the information rights of § 51a GmbHG are guaranteed by law. They cannot be excluded by deviating provisions in the social contract or in individual cases, § 51 Abs. 3 GmbHG. In addition, a time restriction of the exercise of rights (e.g. only half-yearly) is in principle inadmissible. However, the social contract may specify the exercise of information rights individually. In particular, the shareholders of a GmbH can specify certain formal requirements for the request for information / insight. The same applies to the provision of the requested information. Furthermore, the Articles of Association may permissibly provide that the information is also provided to the co-partners at the same time. In addition to the information/inspection claims of § 51a GmbHG, the shareholders also have further information rights. This includes, among other things, a right of information of the shareholders regarding relevant information before a resolution and the right to submit the annual accounts and the management report (§ 42a para 1 GmbHG).

2. The right of access

2.1.

The right of access is granted to every shareholder of a GmbH. The amount of its participation in the share capital of the company plays no role here. If there are non-voting shares in a GmbH in individual cases, their owners can still assert the right of access. A separate transfer of the right of access, regardless of the respective share of the business, is not possible. Meanwhile, the authorization of a third party to exercise the right of access is generally permissible. However, the articles of association can effectively exclude such representation in the exercise of information rights. The right of access is to the shareholders during their entire time in the GmbH. During this period, the right of access can in principle be exercised at any time. As soon as a shareholder leaves the GmbH, the information rights disappear.

2.2. Content of information

In terms of content, the right to information includes all “matters of the company”. The right of access is therefore enormous. In addition to management measures and information for the assessment of the managing directors, relevant information on the decision-making, perspective and value of the GmbH is also included. For this reason, a sufficient specification of the requested information by the shareholder must usually be required.

2.3. Information provision

The claim to provide the information is directed directly against the GmbH. As a rule, the information must be provided by the current managing directors. Insofar as the articles of association do not make any specific provision, the managing directors have discretion with regard to the form in which information is provided. As a rule, there is a choice between oral and written information. Regardless of the chosen variant, the information must be provided to the respective shareholder immediately. If the information is not wrongly provided, the claim for information can be enforced by a court against the GmbH.

In addition to the right of access, the shareholders are also entitled to a legal right of access to the “books and writings” of the GmbH according to § 51a GmbHG. The right of access includes, in particular, access to the company’s commercial documents and trading books. The inspection usually has to take place in the business premises of the GmbH. Although the interests of the GmbH worthy of protection with regard to sensitive information are to be recognized when inspection, the consulting partners are usually authorized to make copies of the documents viewed. As far as the complex content of the documents requires, the shareholder is also free to consult an expert. However, this usually has to be a professionally obliged to confidentiality (in particular: lawyer, auditor, tax consultant). Whether a concretization of certain documents is also necessary within the framework of the right of access has not yet been conclusively clarified. However, in principle all fonts and books kept by the GmbH are covered by the claim to access.

With regard to the right of access, the temporal scope and the addressee, the statements on the right of access (2.) apply accordingly.

Restriction of the right of access / right of access

4.1. Right of refusal of access

Due to the enormous scope of the information rights according to § 51a GmbH, these cannot exist without restriction. Therefore, in § 51a para. 2 GmbHG is regulated by law that the managing director of a GmbH in individual cases the provision of the information or may refuse to grant access to the shareholder. The requirements for a legitimate refusal of the managing director are also finally regulated by law.

Accordingly, the right of access / right of access does not exist, if there is a concrete risk that the shareholder would use the received information for purposes outside the company and thereby cause the GmbH a disadvantage. A disadvantage in this sense is already any economic disadvantage. It may also suffice here if the GmbH itself is not disadvantaged, but a company associated with it is affected by the disadvantage. However, only minor disadvantages for the GmbH or an affiliate cannot justify the exclusion of information rights. The most common example of such a risk is, of course, the use of sensitive information for the benefit of a competitor.

4.2. decision to refuse

Refusal to provide the information requested by the shareholder constitutes a considerable interference with the rights of shareholders. Accordingly, the law stipulates that the managing directors may not make such an important decision without the approval of the general meeting. If the managing directors assume that the requirements of a right of refusal of information are met and therefore wish to refuse to provide the information, they must convene a general meeting in this regard. Then the shareholders' meeting decides on the refusal of information, § 51a para 2 S. 2 GmbHG. The resolution shall in principle be adopted by a simple majority, it being understood that the shareholder concerned is not entitled to vote. The managing directors are bound by the result of the shareholder resolution.