It is generally accepted that the statutory obligation for the management board and the supervisory board to provide information about the company to the general meeting upon request also applies with regard to individual shareholders, but does this right to information also exist outside the general meeting?
In a recent ruling (HR 9 July 2010, ASM International N.V., JOR 2010/228), the Supreme Court confirmed that the right of shareholders to information is only vested in the general meeting as a company body. The term general meeting, however, should be interpreted broadly, as held by the Supreme Court: "In addition, every shareholder independently has the right to ask questions at a meeting, regardless of whether these pertain to items on the agenda, and the company must answer those questions." This means that the company is not required to answer questions posed outside the general meeting, among other things because of the administrative burden such an obligation would entail.
It is not immediately clear whether this finding by the Supreme Court applies only to listed companies. On the face of it, there is no reason to assume that the rule does not apply to non-listed NVs (public companies) and BVs (private companies). After all, in private companies, as well, there is a lot to be said for the board only being required to give information to shareholders within the scope of the general meeting. There may be exceptions to this, however, under certain circumstances. In a private company with just a few shareholders, such shareholders may be entitled to information outside the meeting. Such a right to information may be explicitly agreed, for example in a shareholders' agreement. But there may be other circumstances as well in which it could be argued on the basis of the principle of equality of shareholders that a shareholder has a right to information outside the general meeting.
In a case in 2005 (OK 24 June 2005, JOR 2005/209), the Enterprise Section ruled that the fact that a company had three shareholders, two of whom were on the board, meant that the third shareholder was entitled to the same information that the other two shareholders had pursuant to their board positions. The Enterprise Section referred in this respect to a special duty of care that the directors have vis-à-vis the shareholder who is not a board member, in particular with regard to decision-making by the board that has serious consequences for the company. The Enterprise Section found in this case that: "there should be sufficient disclosure with regard to all that information to which the third shareholder who is nota member of the board does not have access in that capacity and that the board should, in particular, attempt to avoid a conflict of interests." According to another decision by the Enterprise Section (OK 2 August 2005, JOR 2005/267), the mere violation of this duty of care justifies the opinion that there are valid reasons for doubting proper policy at the company. In private companies, the failure of the board to provide information or provide sufficient information to a shareholder who is not a board member may, under certain circumstances, have far-reaching consequences, such as the Enterprise Section ordering an investigation into the company's policy.
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