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Right to information about co-shareholders

The shareholder of a public company is entitled to information about the names, addresses and shareholdings of the co-shareholders. The assertion of this right does not constitute an impermissible exercise of rights or an abuse of the right to information, even if it serves, among other things, the purpose of submitting purchase offers to the co-shareholders for their shares. The claim is also not precluded by the provisions of the General Data Protection Regulation (GDPR). This was decided by the Federal Court of Justice (“BGH”) on October 24, 2023 in appeal proceedings.

Facts of the case

The decision is based on the following facts: The plaintiff participates in a fund company via a trust agreement with the defendant as a limited partner in trust. The defendant keeps a register with personal information of all trustors. According to the partnership agreement, the trustors have the same status as a limited partner.

The plaintiff sued for information about the personal data and shareholding amounts of the other trustors.

The decision of the BGH of October 24, 2023 (II ZB 3/23)

In the opinion of the BGH, in accordance with the case law of the higher courts, anyone who participates in a partnership or commercial partnership, in particular in the form of a public company, must expect that their data and the amount of their participation will be disclosed to their co-shareholders and the co-trustors who have the same status as them. This is an inalienable membership right of every shareholder. The right to information arises from the fact that the investor in a public company may be aware of the balance of power in the company. Consequently, knowledge of the extent of the shareholdings of the co-shareholders is also necessary for the informed exercise of membership rights within the meaning of Article 6(1) lit. b GDPR. The shareholder's request for information aimed at gaining knowledge of his co-shareholders is only limited by the prohibition of the inadmissible exercise of rights (Section 242 of the German Civil Code, "BGB") and the so-called prohibition of harassment pursuant to Section 226 BGB. This right to information is also available to a trustor who is treated in the same way as a directly participating shareholder. It cannot be excluded either by provisions in the partnership agreement or by provisions in the trust agreement.

The right to information also exists if the request also serves to submit a purchase offer to the co-shareholders.

It is a legitimate interest of a shareholder arising from the corporate relationship and the resulting contractual relationship to increase his influence on the company by purchasing further shares.

Practical note

The decision is in line with previous case law on the interface between company law and data protection law. Anyone who invests in a public company must expect that their data and information about the amount of their investment may also be disclosed to other shareholders. This also applies - as the BGH has also already ruled - to trustors who are treated as shareholders (BGH of February 5, 2013 - file no. II ZR 134/11). This is also not precluded by data protection law. On the contrary, the disclosure is necessary to protect the interests of the co-shareholders. The BGH had already ruled the same with regard to the old German Federal Data Protection Act (BGH of October 25, 2010 - file no. II ZR 219/09). The co-shareholders' right to information cannot be excluded by a provision in the articles of association or trust agreement.

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