"Who owns the information - owns the world" . Long-familiar classic words. In our age of information, serious attention is paid to this issue in legislation and in judicial practice.
Presidium of the Supreme Arbitration Court Russian Federation in accordance with Article 16 of the Federal Constitutional Law "On Arbitration CourtsIn Russian federation" in connection with issues arising in judicial practice regarding the provision of information at the request of participants in limited liability companies and shareholders, he developed a number of recommendations. He outlined them in the Information Letter No. 144 dated January 18, 2011 “On Some Issues in the Practice of Considering Disputes by Arbitration Courts on the Provision of Information to Participants of Business Companies”.
This document is of interest, in our opinion, primarily to participants in business companies and practicing lawyers, since analyzes in detail the existing legal regulationsfor providing information.
So, the right of the participant economic society to receive information about the company is provided, in particular, by Article 67 of the Civil Code of the Russian Federation.
In case of failure to provide, as well as violation of the procedure and (or) terms for the provision of information by a business company at the request of a participant, such a company (including by order of the prosecutor) may be held administratively liable on the basis of part 1 of article 15.19, parts 2 and 11 of article 15.23 .1 Code of the Russian Federation on Administrative Offenses.
In what order should information be provided? Some recommendations.
When exercising the right to receive information, participants in economic companies are not required to disclose the goals and motives that guide them when requesting information about the company, as well as otherwise justify the existence of an interest in obtaining relevant information, except in cases arising from the law.
Wherein it is important to establish whether the person requesting information is abusing the right.
The information letter says the following:
“A participant in a business partnership may be denied satisfaction of a request to provide information if it is proved that his right to information has not been violated by the company. This may be evidenced, in particular, by the following circumstances: repeated statements of demands for the provision of the same documents and (or) their copies, provided that the first of such requirements was duly satisfied by the company; statement by the participant of the requirement to provide information and documents relating to past periods of the business entity and clearly not of value in terms of their analysis (economic, legal (including due to the expiration of limitation period) etc.).
The court may refuse to satisfy the participant's claim if it is proved that there is an abuse of the right in his actions (Article 10 of the Civil Code of the Russian Federation). Thus, the abuse of the right to information by a participant may be indicated by the fact that the participant who requested the provision of information is the actual competitor of the economic company (or its affiliate), and the requested information is confidential, belongs to the competitive sphere, and its dissemination may cause harm to the commercial interests of the society.
At the same time, the fact that the participant has a legitimate interest in obtaining information may be evidenced, for example, by the plaintiff planning to sell his shares or shares in authorized capital, preparation for going to court with a demand to challenge the decision of the body or agreement of the business company or to hold the company's bodies liable, as well as preparation for participation in the general meeting of shareholders.
It follows from the content of paragraph 1 of Article 67 of the Civil Code of the Russian Federation that the procedure for providing information to participants in a business company may be established by the charter of the company. At the same time, the provisions of the company's charter cannot restrict the rights of participants to information in comparison with the rights granted to them by Federal Law No. 208-FZ of December 26, 1995 "On Joint-Stock Companies" or Federal Law No. 14-FZ of February 8, 1998 "On Limited Companies responsibility." Restriction of the rights of participants in the internal documents of a business entity is also not allowed; the relevant provisions of the charter or constituent documents are not subject to application.
The Law on Limited Liability Companies provides for the possibility of establishing in the charter only the procedure for obtaining information about the company, but not the list of information to be provided to the company's participants. From the third paragraph of paragraph 1 of Article 8 of the Law on Limited Liability Companies, it follows that the participant has the right to demand any documents available from the company that are related to the activities of this company.
When applying to a business company with a request to provide information about the company, the participants must determine the subject of your claim, specifying the list and types of information requested or documents.
Please note that neither the Law on Joint Stock Companies nor the Law on Limited Liability Companies contains provisions restricting the right of a participant to demand the provision of information and documents for the period of activity of a business company during which this person was not a member of this society.
From the moment of acquiring the status of a participant in a business company, a person may demand the provision of documents of the company, regardless of the date of preparation of these documents.
And vice versa, the requirements of a person cannot be satisfied - to oblige a business company to provide information if at that moment the person is not a member of the business company. At the same time, a person to whom a limited liability company is obliged to pay the actual value of the share acquired by the company in its authorized capital (Article 23 of the Law on Limited Liability Companies), as well as a person from whom the shares of an open joint-stock company were purchased in the manner prescribed by Article 84.8 of the Law on Joint Stock Companies, has the right to demand the provision of information on the activities of the company, related, respectively, to the determination of the actual value of the share payable by the company, or to the determination of the price of repurchased shares.
The Law on Joint Stock Companies and the Law on Limited Liability Companies provide for two forms of exercising the participant's right to information:
1) familiarization with the documents
2) obtaining copies of documents.
Choosing a specific form of exercising the right to receive information carried out by the participant at the same time, his right to demand the provision of copies of documents is not conditioned by the need to initially arrive at the location of the economic company and familiarize himself with the documents. In addition, in the process of familiarization with the documents, regardless of whether it was specified in his requirement to provide information, a participant in a business partnership may independently, using personal technical means (hand-held scanner, camera, etc.) copy documents, with whom he meets.
When evaluating the validity of the claims of a business company to recover from a participant the costs of making copies of documents, the courts should proceed from the fact that the fee charged by the company, which includes the costs of making copies of documents, should not exceed the price that, under comparable circumstances, is usually charged for making copies of documents .
If the participant’s request does not contain an indication of a specific date of his arrival to familiarize himself with the documents and (or) receive copies of them, the company, based on the need to provide the participant real possibility receive the requested information, is obliged to inform the participant within the time limits established by law (paragraphs 2 and 3 of Article 91 of the Law on Joint Stock Companies, paragraph 4 of Article 50 of the Law on Limited Liability Companies) a specific date when he can arrive at the location of the company in order to familiarize himself with the documents and (or) receipt of made copies of documents. Instead, the participant may request that the copies of the documents made be sent to his address by mail or otherwise, with the subsequent imposition of the corresponding costs on him.
If a participant in a business partnership arrives to familiarize himself with the requested documents and (or) receive copies of documents made not on the day notified to him by the company, or if the date is not announced after the expiration of the period specified in his demand or established by law, then the company has the right to refuse to provide him with information, by agreeing on a new date within the appropriate time frame.
According to paragraph three of clause 2 of article 67 of the Civil Code of the Russian Federation, participants in a business entity are obliged not to disclose confidential information about the activities of the company.
In this regard, if the documents required by a member of a business company contain confidential information about the activities of the company, including commercial secrets, the company, before transferring the relevant documents and (or) their copies, may require issuance of a receipt, in which the participant confirms that he is warned about the confidentiality of the information received and about the obligation to keep it.
If the documents requested by a participant in a business partnership contain other secrets protected by law (state, banking, etc.), the company provides him with extracts from such documents, excluding the relevant information from them. At the same time, the company is obliged to inform the participant about the grounds for classifying the information contained in these documents as a secret protected by law.
It should be borne in mind that, by virtue of paragraph 2 of Article 6 of the Federal Law of July 27, 2006 No. 152-FZ “On Personal Data”, the consent of individuals who have entered into legal relations with the company is not required to provide a participant in a business company with documents containing personal data of such individuals (last name, first name, patronymic and place of residence individual, other information necessary to go to court in accordance with the requirements of procedural legislation, information on the amount of remuneration of an individual, etc.), if this information is necessary for the participant to protect his rights and legitimate interests, for example, challenging a transaction concluded with this person, or filing a lawsuit against a member of the board of directors (supervisory board) of the company, the sole executive body of the company, the temporary sole executive body of the company, a member of the collegial executive body of the company (board, directorate), as well as against the manager for compensation for losses caused to the company .
It is important that, by virtue of paragraph nineteen of clause 1 of Article 89 of the Law on Joint Stock Companies, in addition to the documents expressly listed in this clause, the company is obliged to store other documents provided for by this Law, the charter of the company, internal documents of the company, decisions of the general meeting of shareholders, the board of directors (supervisory board) company, company management bodies, as well as documents stipulated by the legal acts of the Russian Federation.
An additional list of documents that a company is obliged to store and provide at the request of a shareholder is established by the Regulations on the procedure and terms for storing documents of joint-stock companies, approved by Resolution No. 03-33 / ps of the Federal Commission for Securities of Russia dated 16.07. process of activity government agencies, local governments and organizations, indicating the periods of storage, approved by order of the Ministry of Culture of Russia dated August 25, 2010 No. 558. In accordance with this List, the company is obliged to store civil law contracts, therefore, they must also be provided at the request of shareholders.
In doing so, it must be taken into account that the content of civil law contracts may be confidential.
According to the first paragraph of clause 1 of Article 91 of the Law on Joint Stock Companies to the documents accounting Shareholders (shareholder) holding in aggregate at least 25 percent of voting shares of the company have the right to access.
At the same time, the restrictions on the provision of accounting documents to shareholders, established by paragraph 1 of Article 91 of the Law on Joint Stock Companies, do not apply to the provision of documents financial statements. As follows from the content of paragraph 2 of Article 13 of the Accounting Law, the accounting statements of business entities consist of: balance sheet; income statement; annexes to them provided for by regulatory enactments; an auditor's report confirming the reliability of the organization's financial statements, if it is subject to mandatory audit or mandatory audit in accordance with federal laws; explanatory note.
Since the Law on Limited Liability Companies does not contain restrictions on the provision of accounting documents, then they all members of the society have access .
We, following the Presidium of the Supreme Arbitration Court of the Russian Federation, focused on some aspects of the correct claim and provision of information. We think this will help those who work with such information.
We keep our finger on the pulse of the law - keep it up.
The latest amendments to corporate legislation were made by Federal Law No. 233-FZ dated July 29, 2017 “On Amendments to the Federal Law “On Joint Stock Companies” and Article 50 of the Federal Law “On Limited Liability Companies” (hereinafter referred to as the Law as amended on July 29, 2017). .2017) and mainly concerned the rights of participants in business entities to information.
And what is the result of the reform? The legislator adopted a reactionary course, as indicated by the narrowing of the total rights of shareholders to receive information about the company and its economic activities.
There is something to compare
For a long time, the courts, resolving disputes related to the exercise of the information rights of shareholders, followed the explanations formulated in the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of January 18, 2011 No. VAS RF No. 144).
Adopted by the Law in red. of 07/29/2017, the changes not only specify these rights, enshrined in paragraph 1 of Art. 65.2 of the Civil Code of the Russian Federation, but also establish other rules that actually cancel some of the guarantees provided to shareholders by the provisions of the above letter.
The new rules do not contain the old rights
Consider the main innovations:
1. A clear ranking of shareholder rights has been introduced
Now the Law as amended. dated July 29, 2017, access to information is made dependent on the shareholder's percentage of voting shares.
For example, all shareholders are entitled to receive such general information how:
- charter,
- minutes of general meetings of shareholders,
- annual reports,
- decisions to issue securities,
- other information that they can get on the official website of the society itself.
More rights are given shareholders with shares from 1 to 25% of voting shares. They have the right to demand:
- minutes of meetings of the board of directors,
- reports of appraisers in relation to property that has become the subject of a major transaction or an interested party transaction.
Also, the issue of granting civil law contracts at the request of such shareholders was finally resolved and it was decided not in favor of the latter.
Previously, in accordance with paragraph 16 of the Letter of the Supreme Arbitration Court of the Russian Federation No. 144, civil law contracts were not qualified as accounting documents and, accordingly, were subject to issuance at the request of shareholders with shares from 1 to 25% of the voting shares of the company, in contrast to the accounting documentation itself, the right to the receipt of which was possessed by shareholders with a share of more than 25%. A similar approach could be found in the Resolutions of the Supreme Court of the Russian Federation.
The shareholder did not request from the company any documents related to the execution of the requested contracts, which reflect the facts of the economic activity of the company and relate to accounting documents.
In this regard, the company was brought to administrative responsibility for an offense, liability for which is established by Part 1 of Article 15.19 of the Code of Administrative Offenses of the Russian Federation (See, and also:;).
This approach continued until 2017, when two diametrically opposed positions were expressed within one month at the level of the Supreme Court of the Russian Federation.
So, the court found that civil law contracts do not apply to accounting documents, but already in, included in the Review judicial practice The Supreme Court of the Russian Federation No. 3 (2017) (approved by the Presidium of the Supreme Court of the Russian Federation on July 12, 2017) - came to the opposite conclusions, pointing out that civil law contracts relate to accounting documents and are not subject to issuance to shareholders with shares of less than 25% of voting shares.
Law as amended. dated July 29, 2017, finally determined the rights of shareholders owning from 1 to 25% of voting shares. This is the right to receive only information about completed major transactions, transactions with interest, including the subject, date of execution, deadline, etc. (clause 1, clause 2, article 91 of the Law as amended on July 29, 2017). However, unlike shareholders, participants in a limited liability company have the right to receive agreements that are major transactions and transactions with interest (clause 12, article 50 of the Law as amended on 07/29/2017).
2. Confirm the target
An important innovation of the new law is the need for a shareholder with a share of 1 to 25% of a share to have a business goal, if he wants to exercise his right to receive information about completed transactions, minutes of the board of directors, etc. (Clause 4, Article 91 of the Law as amended on July 29, 2017). Interestingly, this provision completely cancels general rule 144, stipulated earlier in clause 1 of Letter No. 144 of the Supreme Arbitration Court of the Russian Federation, by virtue of which the shareholders were not obliged to disclose the goals and motives for sending a request for information about the company, or otherwise justify the existence of any interest.
Of course, these clarifications contained a reservation: if the shareholder is unfair or is a competitor of the company, then the company has the right not to issue information with reference to Art. 10 of the Civil Code of the Russian Federation (abuse of the right).
However, with the introduction of the new law, the general rule has changed: the shareholder must justify the business purpose of the request for the relevant documents, that is, explain the existence of a legitimate interest in obtaining documents to exercise their rights. At the same time, the business goal cannot be considered reasonable if the interest of the shareholder is unfounded, and the requested information is confidential and its disclosure may harm the society (clause 7 of article 91 of the Law as amended on 07/29/2017)
This approach was established in paragraph 5 of the Letter of the Supreme Arbitration Court of the Russian Federation No. 144, where the Presidium of the Supreme Arbitration Court of the Russian Federation also indicated that the law does not restrict the right of a shareholder to require the provision of information and documents for the period of the company's activity, during which this person was not a member of this company.
From now on, these rights are limited at the level of the law (clause 6, clause 8, article 91 of the Law as amended on July 29, 2017).
It seems that such changes were made hastily by the legislator, since situations were clearly not thought out in which the new shareholder, in order to implement due diligence it is necessary to verify the information for the period when he was not a shareholder, or such information is necessary to verify the correctness of the calculation of dividends for the period when he was not a shareholder. Moreover, such a restriction is general, that is, it applies to both shareholders owning up to 25% of voting shares, and more than 25%.
Thus, the provisions of the new Law have shifted the balance of interests in favor of corporations, which, on the one hand, will be additional protection for companies from unreasonable requests, and, on the other hand, will not contribute to increasing the openness and transparency of corporations for their shareholders.
Article 91 of the Federal Law "On Joint Stock Companies" provides for the shareholder's right to access information about the activities of the company. With all the usefulness of this rule, it is often used as a tool of blackmail by unscrupulous shareholders.
In this regard, it is important to understand what information a company may not provide to a shareholder upon request, and what information it must provide.
First, requests for information themselves can disrupt the normal functioning of society: they can be sent in large numbers, excessively often; they may refer to the same documents or simply to their extensive volume over many years. Given that the company must submit copies of the requested documents within seven days from the date of presentation of the relevant request, the organizational costs of the company may be significant.
Secondly, the negative consequences for society are often hidden in the documents that are presented to the shareholder. The information obtained can serve as a basis for filing all kinds of lawsuits against the company, for organizing a PR campaign against it, and in general allows expanding the opportunities for corporate blackmail.
Our practice shows that refusal to provide documents entails legal proceedings to compel the company to fulfill this obligation, as well as the application of administrative legal measures to the company, namely, bringing to responsibility under Part 1 of Article 15.19 of the Code of Administrative Offenses of the Russian Federation.
Request for documents: what is required to give?
First, let's list the documents that must be provided to the shareholder in accordance with federal law. And these are all the documents that the company is obliged to keep:
- an agreement on the creation of a company;
- the charter of the company and the amendments and additions made to it, which are registered in the prescribed manner, the decision to establish the company, the document on state registration of the company;
- documents confirming the company's rights to property on its balance sheet;
- internal documents of the company;
- regulation on a branch or representative office of the company;
- annual reports;
- accounting documents;
- accounting documents;
- minutes of general meetings of shareholders (decisions of the shareholder who is the owner of all voting shares of the company), meetings of the board of directors (supervisory board) of the company, the audit commission (auditor) of the company and the collegial executive body of the company (board, directorate);
- voting ballots, as well as powers of attorney (copies of powers of attorney) for participation in the general meeting of shareholders;
- reports of independent appraisers;
- lists of affiliated persons of the company;
- lists of persons entitled to participate in the general meeting of shareholders and persons entitled to receive dividends, as well as other lists compiled by the company for the exercise by shareholders of their rights in accordance with the requirements of the Federal Law "On Joint Stock Companies";
- conclusions of the audit commission (auditor) of the company, the auditor of the company, state and municipal financial control bodies;
- securities prospectuses, quarterly reports of the issuer and other documents containing information subject to publication or disclosure in any other way in accordance with the Federal Law "On Joint Stock Companies" and other federal laws;
- notices of the conclusion of shareholder agreements sent to the company, as well as lists of persons who have entered into such agreements;
- judicial acts on disputes related to the creation of a company, its management or participation in it;
- other documents stipulated by the Federal Law "On Joint Stock Companies", the charter of the company, internal documents of the company, decisions of the general meeting of shareholders, the board of directors (supervisory board) of the company, the company's management bodies, as well as documents stipulated by the legal acts of the Russian Federation.
Balance request and more: we analyze the nuances
Any shareholder has the right to access the listed documents. However, there are a few exceptions. Firstly, accounting documents and minutes of meetings of the collegiate executive body, the right of access to which is given to shareholders (shareholder) holding in the aggregate at least 25 percent of the voting shares of the company. Secondly, the list of persons entitled to participate in the general meeting of shareholders is provided by the company for review only at the request of the persons included in this list and holding at least 1 percent of the votes. In this regard, shareholders who are not included in the list or do not hold in aggregate at least 1 percent of the votes are not entitled to demand that such a list be provided to them, including after the General Meeting of Shareholders.
Now let's take a closer look at some documents.
- The charter of the company and the amendments and additions made to it, which are registered in the prescribed manner, the decision to establish the company, a document on the state registration of the company.
Note: this should also include those editions of the charter that at the time of the request will be inactive.
— Documents confirming the company's rights to property on its balance sheet.
Note: this paragraph includes, among other things, economic contracts for the acquisition of property, cadastral passports of land plots, technical passports for buildings and certificates of registration of ownership.
— Accounting and reporting documents.
Note: accounting and reporting documents should be distinguished, since, as mentioned above, access to accounting documents for shareholders is limited.
Accounting documents are primary accounting documents and accounting registers.
If a shareholder requests accounting documents for periods prior to January 01, 2013, then one must proceed from the content of paragraph 2 of article 13 of Federal Law No. balance; income statement; annexes to them provided for by regulatory enactments; an auditor's report confirming the reliability of the organization's financial statements, if it is subject to mandatory audit or mandatory audit in accordance with federal laws; explanatory note. After January 01, 2013, in connection with the adoption of the new Federal Law "On Accounting", the auditor's report and the explanatory note no longer apply to accounting documents.
According to the clarification contained in the Information Letter of the Presidium of the Supreme Arbitration Court of the Russian Federation dated January 18, 2011 No. 144, if a participant applies to a company with a request to provide accounting documents for the period in which such a business company was released from the obligation to maintain accounting records (paragraph 3 Article 4 of the Federal Law No. 129-FZ of November 21, 1996), the company is not entitled to refuse to provide information, referring to the absence of such documents, but is obliged to inform the participant about the absence of accounting documents and the reasons for their absence, and also offer to familiarize themselves with the income accounting book and expenses for the relevant period used by organizations applying the simplified taxation system (Article 346.24 of the Tax Code of the Russian Federation), and (or) provide a copy of it.
Please note that the exemption from the obligation to maintain accounting records in relation to the activities of an open joint stock company does not exclude the need for it to draw up financial statements in the form prescribed by law in order to ensure information transparency and the ability of shareholders to exercise their rights, including the right to receive information about the activities of a joint stock company ( see Ruling of the Constitutional Court of the Russian Federation of June 13, 2006 No. 319-O). Thus, an open joint stock company draws up financial statements and provides them to shareholders.
And one more addition: what has been said is relevant to the periods before January 01, 2013, since the new Federal Law “On Accounting” does not provide for exemption from the obligation to maintain accounting records.
— Other documents stipulated by the legal acts of the Russian Federation.
An additional list of documents that a company is obliged to store and provide at the request of a shareholder is established by the Regulations on the procedure and terms for storing documents of joint-stock companies, approved by Decree of the Federal Commission for the Securities Market of Russia dated July 16, 2003 No. in the course of the activities of state bodies, local governments and organizations, indicating the periods of storage, approved by the Order of the Ministry of Culture of Russia dated August 25, 2010 No. 558. In accordance with this List, the company is obliged to store civil law contracts, therefore, they must also be provided upon request shareholders.
Abuse of the right: there is protection
When filing a request to provide information about the company, shareholders must determine the subject of their request, specifying the list and types of information or documents requested. However, the degree of proper specification of the participant's requirement to provide information is a relative concept. For example, a requirement addressed to the company to submit minutes of general meetings of participants for a certain period does not necessarily imply an indication of the exact dates of the minutes and their numbers, which the participant may not know.
As a general rule, shareholders are not required to disclose the goals and motives that guide them, requiring the provision of information about the company.
At the same time, if a shareholder repeatedly claims to provide the same documents and (or) their copies, to provide information and documents related to the past periods of the business company and clearly not of value in terms of their analysis (economic, legal, etc.), such actions may indicate that the shareholder has abused his rights and that he has no real interest in these documents. If the company fulfills the first requirement, provides the requested documents, and refuses subsequent similar requirements, in the event of a trial, the court will refuse to protect the shareholder’s rights precisely because his rights have not been violated, that he is abusing his right to access information – uses it with the intent to cause harm to society.
Further. The law does not contain provisions restricting the right of a participant to demand the provision of information and documents for the period of the company's activity, during which this person was not a shareholder of this company. Therefore, from the moment of acquiring the status of a shareholder, a person may demand the provision of documents of the company, regardless of the date of preparation of these documents.
At the same time, it should be borne in mind that the company may refer to the expiration of the storage period for certain documents. Such terms are established by the Decree of the Federal Securities Commission of the Russian Federation of July 16, 2003 No. 03-33 / ps, the Information Letter of the Federal Commission for the Securities Market of the Russian Federation of July 28, 2000 No. IK-07/6364, however, longer periods of storage may be determined by the charter of the company. The terms of storage of accounting documents are contained in the Federal Law "On Accounting" (Article 17 of the "old" and Article 29 of the "new" laws); the general rule is five years, the nuances lie in the order in which this period is calculated.
As you can see, the right to information, on the one hand, opens up wide opportunities for the shareholder to participate in the activities of the company and protect their interests, but, on the other hand, it can also serve as a powerful lever of pressure on the company. The above recommendations will help you avoid corporate conflicts or, if such have arisen, will help you win the litigation.
The practice, when joint-stock companies restrict shareholders' access to information about the activities of the company, is quite common. But not all shareholders agree with this. Repeatedly such cases - with the participation of Transneft, Rosneft, VTB, Surgutneftegaz - reached the courts at the initiative of one of the shareholders, and with wide publicity. The main question is whether business entities have the right to restrict access to information, and if so, to what extent? The answer to it was given simultaneously by the Constitutional Court of the Russian Federation in the Ruling of 01.18.2011 No. 8-O-P / 2011 and the Presidium of the Supreme Arbitration Court of the Russian Federation in an information letter of 01.18.2011 No. 144.
The Civil Code gives the right to the participants of a business company to receive information about the activities of the company, to get acquainted with its accounting books and other documentation in accordance with the procedure established by the constituent documents (Article 67 of the Civil Code of the Russian Federation).
That's just for companies and their shareholders (participants) different points perspective on what such an order might include.
Joint stock companies refer to paragraph 1 of Art. 91 of the Federal Law of December 26, 1995 No. 208-FZ “On Joint Stock Companies” (hereinafter referred to as the JSC Law), which has restrictions on obtaining information depending on the number of shares and the type of documentation requested.
There is no such rule for an LLC. This is understandable: LLCs are non-public, like JSCs.
Who has access to the minutes of the board of directors: a new position of the Constitutional Court of the Russian Federation
Regarding the restriction of access to JSC information, one of the ardent defenders of the rights of shareholders has initiated legal proceedings with companies such as Transneft, Rosneft, VTB, Surgutneftegaz over the past few years.
At the end of last year, Rosneft even applied to the Constitutional Court of the Russian Federation, which, on the same day that the Presidium of the Supreme Arbitration Court of the Russian Federation signed the information letter, adopted the Ruling No. 8-O-P/2011 dated 18.01. 91 of the JSC Law.
In a complaint to the Constitutional Court of the Russian Federation, the company insisted that providing any shareholder with copies of the minutes of meetings of the board of directors is contrary to the Constitution of the Russian Federation.
However, the Constitutional Court of the Russian Federation noted in relation to these minutes that each of the shareholders, regardless of the size of their participation, has the right to access them (as opposed to access to the minutes of meetings of the collegiate executive body). At the same time, the right of the management bodies of the JSC to raise objections to the fulfillment of the requirements of the shareholder is allowed, if, from the point of view of the company, the nature and volume of the requested information indicate the presence of signs of abuse of the right by the shareholder. In particular, if he does not have a legitimate interest in obtaining the relevant information or there are other facts confirming his bad faith.
How to claim
The Presidium of the Supreme Arbitration Court of the Russian Federation clarified that the charter of the company and its internal documents do not restrict the rights of participants to information in comparison with the rights granted to them by the laws on joint-stock companies and LLCs.
Thus, the Federal Law of February 8, 1998 No. 14-FZ “On Limited Liability Companies” (hereinafter referred to as the LLC Law) allows fixing in the charter only the procedure for obtaining information about the company, but not determining the specific types of information that can be provided.
Participants have the right to demand any documents available to the company related to its activities (paragraph 3, clause 1, article 8 of the LLC Law). At the same time, they must determine the subject of their request, specify the list and types of information or documents requested.
Full details are not needed. For example, when requesting the minutes of general meetings of participants for a certain period, it is not necessary to indicate the exact dates of the minutes and their numbers, which the participants may not know.
Accounting and reporting documents
By virtue of Art. 91 of the JSC Law, as well as par. 3 p. 1 art. 8 of the LLC Law, shareholders (participants), subject to the restrictions established by law, have the opportunity to gain access to accounting documents and (or) demand that copies be made.
Even if the company keeps accounting using computer programs, this does not relieve it of the obligation to provide access to such information: it must be copied to electronic media and (or) transferred to paper.
In JSCs, shareholders (shareholders) holding in aggregate at least 25% of voting shares have the right to access accounting documents (paragraph 1, clause 1, article 91 of the JSC Law).
At the same time, these restrictions do not apply to accounting documents: balance sheet, income statement, annexes to them, audit reports, explanatory notes.
As for the LLC, all participants have access to its accounting documents.
Forms for obtaining information
Laws on joint-stock companies and on LLC provide for two forms of exercising the participant's right to information: familiarization with documents and obtaining copies of them. The choice of a specific form is up to the participant.
When familiarizing themselves with the documents, the participant can copy them using personal technical means (hand-held scanner, camera). And regardless of whether it was specified in his requirement.
A shareholder (participant) requiring a copy is not obliged to first familiarize himself with the documents at the location of the company. At the same time, he can request both certified and uncertified copies. And if he did not indicate that he needed certified copies, the company has the right to provide simple ones. But if it is noted that certified copies are needed, the society is obliged to issue them.
Deadline for submission
The company must comply with the requirement to provide copies of documents within the period specified in the requirement. But it cannot be less than the time limits established by the Law on JSC or the Law on LLC for the provision of documents for review - seven days (three days - according to judicial acts) and three days, respectively, from the date of presentation of the requirement (paragraphs 2 and 3 of Article 91 of the Law on joint-stock companies and clause 4, article 50 of the Law on LLC). These deadlines also apply when the request does not specify a specific date or deadline for issuing copies.
At the same time, the Presidium noted that the objective possibilities of the society to meet the deadlines should be taken into account. In particular, if the volume of documents to be copied is significant. In addition, it should be taken into account that the implementation of the participant's right to information by obtaining copies should not lead to suspension or significant difficulty in the activities of the company.
You - to me, I - to you
The company has the right, before giving access to information, to request evidence that the documents are really required by the shareholder (participant).
For a JSC, such evidence will be an extract from the register of shareholders or from a depo account. At the same time, if the JSC maintains the register of shareholders on its own and the person who submitted the request is registered in it as the owner of shares, confirmation of the status of a shareholder cannot be required.
An LLC is also not entitled to require confirmation of the status of a participant when information about him is reflected in the list of participants in the company. But if the person is not on the list, the company has the right to request from him an extract from the Unified State Register of Legal Entities or another document confirming the emergence of the right to a share.
The exchange rule also applies when providing documents containing confidential information (including trade secrets). Its participants in a business entity are required not to disclose it (paragraph 3, clause 2, article 67 of the Civil Code of the Russian Federation). Therefore, the company, before transferring such documents or their copies, may require a receipt in which the participant confirms that he is warned about the confidentiality of information and about the obligation to keep it.
Quite often, documents contain other secrets protected by law (state, banking, etc.). By providing extracts from such documents, the company excludes relevant information from them.
Grounds for refusal
The Presidium indicates that participants are not required to disclose the purposes and motives for obtaining information, except in cases arising from the law.
However, in some cases, the company may refuse to provide information.
In particular, when the requirement of the participant to provide documents and (or) their copies was received not for the first time, and the first of such requirements was duly satisfied. Or when a participant requires to provide documents relating to past periods of activity and clearly not of value in terms of their analysis (economic, legal).
Note: The Presidium named only one condition, indicating that the requested documents are clearly of no value. There is no list of such conditions. Therefore, apparently, other conditions will be developed by practice, including judicial practice.
The basis for refusal to provide information may also be the presence in the actions of the participant of the abuse of the right (Article 10 of the Civil Code of the Russian Federation). This is evidenced by the fact that the person is the actual competitor of the company (or its affiliate), and the requested information is confidential, related to the competitive sphere, and its dissemination may harm the commercial interests of the company.
What can confirm the legitimate interest of a shareholder or participant? For example, he plans to sell his shares or shares in the authorized capital, prepare for participation in a general meeting, as well as for going to court with a request to challenge the contract or decision of the company's bodies or to hold them accountable.
The shareholder has the right to receive only the information necessary for the proper assessment of the agenda items, and does not have the opportunity to demand the provision of information outside of the general meeting of shareholders. At the same time, the board of the company has the right to refuse to provide information if its provision, based on a reasonable commercial assessment, is capable of causing significant damage to the company.
I am sure that, according to most corporations, such a rule in force in Germany would be ideal for Russian legislation. But, as you know, the Russian law on joint-stock companies provides for the exact opposite - the shareholder is granted the right to receive almost any document of the company, including those containing confidential information, and the shareholder, demanding the provision of information, is not obliged to disclose the goals and motives by which he is guided. At the same time, the right of a shareholder is protected by serious measures of administrative responsibility - for failure to submit documents, a fine in the amount of 500,000 to 700,000 rubles can be imposed on a joint-stock company, and disqualification up to 1 year is applied to officials.
The application of these norms in practice has led to a situation where joint-stock companies, trying to protect confidential information, under various pretexts, refuse to provide shareholders with it, and shareholders, taking into account tall sizes fine, continue to request documents only for the purpose of putting pressure on society. The widest possible list of information provided and heavy fines for failure to provide it have long turned the civilized procedure, designed for its use by bona fide parties, into a sore point that shareholders put pressure on every time they want to influence the company's management. The result of this is a large number of administrative cases considered by the Bank of Russia, and no less number of litigation related both to the requirements of shareholders to provide documents, and to challenging the decisions of the administrative body to hold the company liable. But despite the large number of cases and the resources expended on their consideration, the existing procedure is not able to protect a bona fide company and its confidential information from the encroachment of shareholders abusing their rights. And, oddly enough, the same procedure is not capable of providing a conscientious shareholder with information about the company, in the case when the company has something to hide.
Obviously, there is a need to change the current situation. It is known that such an initiative comes from the Bank of Russia and the Ministry of Justice of the Russian Federation. The indicated departments propose to conceptually change the existing mechanism, seriously limiting the right of shareholders to access the documents of public companies, and in non-public companies to provide for the possibility of establishing an individual order by the charter of the company. At the same time, the Bank of Russia is ready to revise the list of information disclosed by issuers, moving from information disclosure based on formal criteria to disclosure based on the materiality principle.
In my opinion, the proposed changes are rather controversial, since they significantly restrict the rights of shareholders, while not providing for any mechanism for their protection. It's no secret that this problem It also has a downside, when it is no longer the shareholder that abuses its rights, but the company itself. And this situation was not taken into account when developing the concept of the proposed changes. I believe that without taking into account the points described below, it is impossible to develop a full-fledged mechanism capable of balancing the interests of the company and its shareholders.
1. The existing procedure does not ensure the right of a bona fide shareholder to information.
Practice shows that the current norms, although they provide for almost unlimited opportunities for a shareholder, do not at all guarantee that he will receive the necessary information. This is more evident in the work of non-public companies. To illustrate, let's take a common example. The controlling shareholder, who is not interested in sharing profits with other shareholders, does not decide on its distribution in the form of dividends, but “withdraws” it from the company in other ways. In such a situation, the non-controlling shareholder, trying to protect his rights, begins to look for information that testifies to this, and the controlling shareholder will not allow it to be provided under any circumstances. And it's easy enough to do so. Here are a few options behavior of a company that hides information from a shareholder.
When a shareholder requests all documents of a certain type for a specific period, the company, providing them, excludes “undesirable” documents with impunity.
The shareholder, trying to find confirmation of illegal actions, requests all contracts concluded by the company, for example, in 2013-2015, as well as all documents confirming their execution. At the same time, the shareholder does not know complete list such contracts and, accordingly, having received a large number of copies from the company, is not able to verify that all documents for this period have been submitted. The shareholder is not able to verify the completeness of the information provided by himself; here it would be necessary to seize the documents from the company. Taking advantage of this, the company simply does not provide the shareholder with the documents he is hiding, limiting himself to providing everything else.
The main source for a shareholder in such a situation could be information on cash flows on the company's settlement accounts. But if he requests it in the form of a bank account statement, then the company has the right to refuse to provide it, since it does not apply to the documents of the company (see, for example, Resolution of the Arbitration Court of the Moscow District of October 22, 2015 No. Ф05-14691 / 2015).