§ 3. Shareholders' right to information
Shareholders of the company have the right to receive complete and reliable information about the activities of the company. Such information is provided to shareholders during the preparation of the General Meeting of Shareholders on each item on the agenda. Information about the company's financial and economic activities is communicated to shareholders by submitting an annual report and a report from the board of directors.
A joint-stock company is obliged to disclose information provided for by the JSC Law and the Law on the Securities Market. Laws determine the procedure and forms of disclosure of such information. Thus, the Law on the Securities Market provides that companies that have registered securities prospectuses are required to disclose information in the form of:
Quarterly report of the issuer of emissive securities (quarterly report);
Messages about material facts (events, actions) affecting the financial and economic activities of the issuer of securities (messages about material facts).
Violation of the requirements of the law regarding the presentation and disclosure of information on the securities market entails administrative liability (Article 15.19 of the Code of Administrative Offenses of the Russian Federation) and criminal liability (Article 185.1 of the Criminal Code of the Russian Federation " Malicious Evasion from providing an investor or a controlling body with information specified by the legislation of the Russian Federation on securities").
The right of shareholders to receive complete and reliable information about the activities of the company is exercised in the following ways.
Firstly, in the case of public disclosure of information that the company is obliged to disclose in accordance with the requirements of the law.
Secondly, in the case when the company provides information to shareholders regardless of their desire, for example, the company is obliged in accordance with Art. 52 of the JSC Law to provide information (materials) to persons entitled to participate in the general meeting of shareholders.
Thirdly, when granting the shareholder the right to receive relevant information at will. In this case, the shareholder must apply to the company with an application to provide him with the documents of the company.
The shareholder's right to information means that the shareholder has the right to know which of the documents determined by law the company has and the right to access them.
The company is obliged to provide shareholders with access to the documents listed in paragraph 1 of Art. 89 of the JSC Law, except for documents accounting and minutes of meetings of the collegial executive body of the joint-stock company, the right of access to which is given to shareholders holding in the aggregate at least 25% of the voting shares of the company.
At the request of the shareholder, the company is obliged to provide him for a fee with copies of such documents as: the charter of the JSC, amendments and additions to it, a certificate of state registration of the JSC, internal documents of the JSC, regulations on the branch and representative office, prospectus for the issue of shares of the JSC, minutes of general meetings of shareholders, meetings of the board of directors, lists of affiliated persons of the JSC, conclusions of the audit commission (auditor), auditor and others provided for in paragraph 1 of Art. 89 of the JSC Law.
The documents provided for in this article must be provided by the company within seven days from the date of presentation of the relevant request for review in the premises of the executive body of the company (clause 1, article 91 of the JSC Law).
Thus, the shareholder has the right to study the documents provided to him upon his application; has the right to receive copies of documents. At the same time, the fee charged by the company for the provision of these copies cannot exceed the costs of their production.
Ensuring access to information that the company is required to store and provide to shareholders in accordance with the law is usually assigned to the corporate secretary of the company.
The court rightfully satisfied the claim for the obligation of an open joint stock company to provide copies of the documents of an open joint stock company listed in paragraph 1 of Article 89 of the Federal Law "On Joint Stock Companies", with the exception of balance sheets with appendices, since only shareholders who own in an aggregate of 25% of the company's voting shares; the plaintiff is not one of them (decree of the Federal Antimonopoly Service of the North-Western District of February 24, 2004 in case No. A21-5465 / 03-C2) *(194) .
The Federal Arbitration Court of the North-Western District, having considered in an open court session on February 17, 2004, the cassation complaint of Sistema Open Joint-Stock Company against the decision of the Arbitration Court of the Kaliningrad Region dated November 27, 2003 in case No. A21-5465 / 03-C2, established:
Investreserve Limited Liability Company (hereinafter referred to as Investreserve LLC) filed a lawsuit with the Arbitration Court of the Kaliningrad Region against Sistema Open Joint Stock Company (hereinafter referred to as Sistema OJSC) on the obligation to provide copies of the following documents to Sistema OJSC:
accounting documents - as of the last reporting date and for three recent years;
Lists of persons entitled to participate in the general meeting of shareholders entitled to receive dividends - as of the day the claim is filed;
Prior to the decision on the case, Investreserve LLC clarified the claims and asked to provide the plaintiff with copies of the following documents of Sistema OJSC on the day the court decision was made:
Lists of affiliated persons of the company;
Lists of persons entitled to participate in the general meeting of shareholders entitled to receive dividends.
By decision dated November 27, 2003, Sistema OJSC is obliged to provide Investreserve LLC with copies of the following documents:
Charter of the company, amendments and additions made to the charter of the company, registered in the prescribed manner, decisions on the establishment of the company, certificate of state registration of the company;
Documents confirming the company's rights to real estate"BTI or institutions of justice" as of 01.10.2003;
Balance sheets with appendices for the last three years, annual reports;
Minutes of general meetings of shareholders, meetings of the board of directors of the company, the audit commission of the company for the last three years;
Reports of independent appraisers - for the last three years;
Lists of affiliated persons of the company as of November 27, 2003;
Lists of persons entitled to participate in the general meeting of shareholders entitled to receive dividends as of November 27, 2003;
Issue prospectuses, quarterly reports of the issuer and other documents containing information subject to publication or disclosure in any other way.
The legality and validity of the appealed judicial act were not checked in the appellate instance.
In the cassation appeal, Sistema OJSC asks for the decision of November 27, 2003 to be canceled in full and the case be remitted for a new trial. The complainant refers to misapplication norms of substantive and procedural law and considers that the court did not investigate the issue of the presence or absence of the defendant's documents, the requirement to provide copies of which was stated by the plaintiff. In addition, according to the complainant, the court went beyond the scope of the claims by obliging the defendant to provide documents confirming the company's rights to real estate, while the company is obliged to provide documents confirming its rights to property on its balance sheet.
The legality of the appealed judicial act was verified in the cassation instance.
According to paragraph 1 of Article 91 of the Federal Law "On Joint Stock Companies", a joint stock company is obliged to provide shareholders with access to the documents listed in paragraph 1 of Article 89 of the Law. The specified documents must be provided by the company within seven days from the date of presentation of the relevant request, and at the request of the shareholder, copies of these documents must also be provided to him.
In accordance with Clause 1 of Article 91 of the Federal Law "On Joint Stock Companies", shareholders holding in aggregate at least 25 percent of the voting shares of the company have the right to access accounting documents and minutes of meetings of the collegial executive body.
As follows from the case file, the plaintiff sent the defendant an application for copies of all documents provided for by paragraph 1 of Article 89 of the Federal Law "On Joint Stock Companies", with the exception of accounting documents and minutes of meetings of the collegial executive body of the company. This statement on behalf of Investreserve LLC was signed by the general director of the company.
Since Sistema OJSC did not provide copies of the documents, Investreserve LLC filed this claim.
According to the extract from the register dated 05.05.2003 LLC "Investreserve" is the owner of 55 shares issued by OJSC "Sistema". This circumstance was not disputed by the defendant in the court of first instance.
The court of first instance correctly concluded that the plaintiff had the right to demand to provide him with copies of the documents of OAO Sistema, with the exception of accounting documents and minutes of meetings of the sole executive body. Therefore, the court, in accordance with paragraph 2 of Article 91 of the Federal Law "On Joint-Stock Companies", reasonably satisfied the plaintiff's requirements in terms of providing him with copies of the company's charter; amendments and additions made to the charter of the company, registered in the prescribed manner; decisions to establish a society; certificates of state registration of the company; annual reports; minutes of general meetings of shareholders, the audit commission (auditor) of the company; voting ballots, as well as 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 entitled to receive dividends; prospectus, quarterly reports of the issuer and other documents containing information subject to publication or disclosure in any other way.
The cassation instance cannot agree with the argument of the submitter of the complaint that the court of first instance did not investigate the issue of whether the defendant has or does not have documents, the requirement to provide copies of which was stated by the plaintiff. In accordance with paragraph 1 of Article 65 of the Arbitration Procedure Code of the Russian Federation, each of the parties is obliged to prove the circumstances to which it refers as the basis for its claims and objections. Thus, the defendant had to prove the impossibility of providing the plaintiff with documents, which he is obliged to keep by virtue of paragraph 1 of Article 89 of the Federal Law "On Joint Stock Companies".
By virtue of paragraph 2 of Article 91 of the Federal Law "On Joint Stock Companies", a fee is charged for providing copies of documents, the amount of which cannot exceed the costs of their production.
At the same time, the cassation instance considers that, in terms of satisfying the requirement to provide balance sheets with annexes, the decision was made in violation of paragraph 1 of Article 91 of the Federal Law "On Joint Stock Companies", since only shareholders owning a total of 25 percent have the right to access these documents. voting shares of the company; Plaintiff is not one of them.
In addition, the list of persons entitled to participate in the general meeting of shareholders is provided by the company for review at the request of the persons included in this list and having at least 1 percent of the votes, based on paragraph 4 of Article 51 of the Federal Law "On Joint Stock Companies" applies to the information (materials) provided to shareholders entitled to participate in the general meeting of shareholders, in preparation for such a meeting and must be provided in the manner prescribed by this article. The materials of the case do not confirm compliance by the plaintiff with these requirements of the law.
However, in accordance with paragraph 1 of Article 89 of the Federal Law "On Joint-Stock Companies", a joint-stock company has an obligation to keep these documents, and, consequently, an obligation to provide them in accordance with Article 91 of this Law.
According to paragraph 3 of Article 288 of the Arbitration Procedure Code of the Russian Federation, a violation or incorrect application of the rules of procedural law is the basis for changing or canceling the decision if this violation led or could lead to the adoption of an incorrect decision.
Based on the foregoing and guided by articles 286, 287, 288, 289 of the Arbitration Procedure Code of the Russian Federation, the Federal Arbitration Court of the North-Western District ruled:
The decision of the Arbitration Court of the Kaliningrad Region dated November 27, 2003 in case No. A21-5465 / 03-C2 is amended to read as follows:
"To oblige Sistema Open Joint Stock Company to provide Investreserve Limited Liability Company with copies of the following documents:
Charter of the company, amendments and additions made to the charter of the company, registered in the prescribed manner, decisions on the establishment of the company, certificate of state registration of the company;
Documents confirming the company's rights to property on its balance sheet;
Regulations on a branch or representative office of a company;
Annual reports - for the last three years;
Minutes of general meetings of shareholders, meetings of the board of directors of the company, the audit commission (auditor) of the company - for the last three years;
Reports of independent appraisers - for the last three years;
Lists of affiliated persons of the company - on the day of filing a claim;
Lists of persons entitled to participate in the general meeting of shareholders, entitled to receive dividends - as of the day the claim is filed;
Conclusions of the audit commission (auditors) of the company, the auditor of the company, state and municipal financial control bodies - for the last three years;
Issue prospectuses, quarterly reports of the issuer and other documents containing information subject to publication or disclosure in any other way.
Reject the rest of the claim."
| " Nepesov K.A. Tax aspects of transfer pricing - a comparative analysis of the experience of Russia and foreign countries. - M.Wolters Kluver, 2007.rtf |
09 Sep 2012 17:00
One of the principles of corporate governance, enshrined in the Russian Code of Corporate Conduct, is the principle of timely disclosure of complete and reliable information about the company in order to enable the shareholders of the company and investors to make informed decisions (Code of Corporate Conduct. Recommended by Order of the Federal Securities Commission of the Russian Federation dated April 4, 2002 N 421 /R).
Any, and above all public, should be informationally open and transparent, which is a necessary factor for its investment attractiveness. Investors will come to a company in which the rights and legitimate interests of shareholders are not infringed, including the right of shareholders to receive information in accordance with the procedure established by law.
Therefore, the information transparency and openness of JSCs are made up of two interrelated components. The first one is shareholders' right to information. The second component is the information policy established in the JSC as a guarantee of the exercise of the right to receive information by both shareholders and investors.
The issue of the right of shareholders to receive information about the activities of a business entity has become particularly relevant after the publication of the information letter of the Presidium of the Supreme Arbitration Court dated January 18, 2011 N 144 "On Some Issues in the Practice of Arbitration Courts Considering Disputes on the Provision of Information to Participants of Business Companies". Some conclusions of the highest judicial instance formed the basis of the economic development draft law on the right of shareholders to information "On the introduction of amendments to certain legislative acts of the Russian Federation in terms of improving the mechanisms for exercising the rights of participants in business entities to information." The main trend of the draft law is to direct the state regulator to even greater openness of the joint-stock company and protect the rights of shareholders to receive information.
The developers have significantly expanded the list of documents that a shareholder has the right to request from his company. In particular, the draft law establishes the obligation of JSCs to provide information and documents to their shareholders in relation to controlled organizations. The project provides for information transparency for the subsidiaries of JSC. To do this, the company is obliged to request documents of interest to the shareholder from its "daughter". Amendments will be made to Art. 91 of the Law "On Joint Stock Companies". The draft law enshrines the right of a shareholder to familiarize himself not only with the minutes of meetings of the board of directors (supervisory boards), but also with the texts of all business agreements of the JSC that were approved by the board of directors, shareholder agreements and decisions of any state and municipal bodies that exercise control over the company (Internet -portal of the Government R).
Note. The concept of "controlled organization" is contained in the Federal Law "On the securities market". Controlled person (controlled organization) - which is under the direct or indirect control of the controlling person. This term is used only for the purpose of disclosure and (or) provision of information in accordance with this Federal Law - Federal Law of October 4, 2010 N 264-FZ.
At the same time, the company will not be able to refuse to provide documents, referring to commercial secrets - in this case, the bill provides for the right of the company to demand a non-disclosure receipt from the shareholder of the information received. The application of the revolutionary amendments will be controlled by the FFMS, which, after the adoption of the law, will develop a procedure for requesting and providing copies of documents to shareholders.
It is not yet clear whether the bill under consideration will be passed or whether it will be passed at all. However, I would like to draw attention to the following, in our opinion, problems and suggest ways to solve them.
First, it is necessary to clearly define what documents the company is obliged to keep and what documents the shareholders have the right to access, i.e. the right to receive information from these documents.
Article 89 of the Federal Law "On JSC" gives a list of documents that JSC is obliged to keep. The same article of the Law provides that the company is obliged to keep "other documents stipulated by this Federal Law, 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 management bodies of the company, as well as documents stipulated by legal acts of the Russian Federation". Such acts include the Regulations on the procedure and terms for storing documents of joint-stock companies, approved by the Decree of the Federal Securities Commission of Russia dated July 16, 2003 N 03-33 / ps. This Regulation was adopted in accordance with paragraph 2 of Art. 89 of the Law and establishes "the procedure and terms for the storage of documents of joint-stock companies, including the procedure for the destruction of documents with expired storage periods."
Another act that determines the requirements for the storage periods of documents is the List of Standard Management Archival Documents Formed in the Process government agencies, local governments and organizations, indicating the terms of storage (Bulletin of normative acts of federal executive bodies. 2010. N 38).
This Order of the Ministry of Culture was adopted in accordance with the Federal Law "On Archives in the Russian Federation", which regulates relations in the field of storage organization.
For non-fulfillment by a joint-stock company of the obligation to store documents that are provided for by the legislation on joint-stock companies, as well as for violation of the established procedure and terms for storing such documents, administrative liability is established (Article 13.25 of the Code of Administrative Offenses of the Russian Federation).
Article 91 of the Federal Law "On Joint-Stock Companies" provides that "the company is obliged to provide shareholders with access to the documents provided for in paragraph 1 of Article 89 of the Law." In other words, shareholders have the right to access those documents that the company is obliged to keep.
Since the list of documents that the company is obliged to keep is open and may be provided for by other legal acts of the Russian Federation, the list of documents to which shareholders have the right to access is also open. This served as the basis for the Supreme Arbitration Court of the Russian Federation to indicate that, in accordance with the List of typical managerial archival documents generated in the course of the activities of state bodies, local governments and organizations, indicating the storage periods, approved by Order of the Ministry of Culture of Russia dated August 25, 2010 N 558, the company is obliged to keep civil law contracts, therefore, they must also be provided at the request of shareholders (Item 16 of the information letter of the Presidium of the Supreme Arbitration Court of Russia dated January 18, 2011 N 144 "On some issues of the practice of consideration by arbitration courts of disputes on the provision of information to participants in business entities" ).
At the same time, it is necessary to distinguish between documents that the company is obliged to keep and documents to which shareholders have the right to access.
Storage of documents is carried out in order to implement state regulation and control over the activities of the company. As stated in the Ruling of the Constitutional Court of the Russian Federation of January 18, 2011, the documents listed in paragraph 1 of Art. 89 of the Federal Law "On joint-stock companies", "are subject to mandatory storage by a joint-stock company in order to reliably and fully reflect the activities of the company, compare it with the activities of other business entities, evaluate, as well as ensure state regulation and control in the financial and economic sphere" (Determination of the Constitutional Court Russian Federation dated January 18, 2011 N 8-O-P on the complaint of OJSC "Oil Company" Rosneft "for violation constitutional rights and freedoms by the provision of the first paragraph of paragraph 1 of Article 91 of the Federal Law "On Joint Stock Companies"). Shareholders' right of access to JSC documents is their right to receive information and has a different purpose than the storage of documents by the company.
The exercise by a shareholder of his rights related to making decisions on the activities of the company is impossible in the absence of the necessary and sufficient information for making such decisions. In one of the rulings, the Constitutional Court of the Russian Federation noted that "the normative provision of the Federal Law "On Joint Stock Companies" on the obligation of a joint stock company to provide shareholders with access to its documents is aimed, among other things, at ensuring the information transparency of the economic activities of a joint stock company and the possibility for shareholders to exercise their rights. .." (Determination of the Constitutional Court of the Russian Federation of June 18, 2004 N 263-O "On the refusal to accept for consideration the complaint of citizen Simakov Sergey Ivanovich about the violation of his constitutional rights by the first paragraph of paragraph 1 of Article 91 of the Federal Law "On Joint Stock Companies").
The right of shareholders to receive complete and reliable information about the activities of the company is realized different ways: by public disclosure of information that the company is obliged to disclose in accordance with the requirements of the law; by providing the company with information to shareholders, regardless of their desire, for example, the company is obliged in accordance with Art. 52 of the Law on joint-stock companies to provide information (materials) to persons entitled to participate in the general meeting of shareholders. Finally, when granting the shareholder the right to receive relevant information at will. In accordance with Art. 91 of the Federal Law "On Joint Stock Companies" the company is obliged to provide shareholders with access to the documents provided for in paragraph 1 of Art. 89 of the Federal Law.
The shareholder's right to information means that the shareholder has the right to know which of the documents determined by law the company has and the right to access them. In this regard, it appears that Art. 91 of the Joint Stock Law should contain a separate list of documents to which shareholders have access and should not be tied to Art. 89 of the Law, which lists the documents to be stored. Secondly, art. 90 of the Federal Law "On Joint Stock Companies" provides that information about the company is provided to them in accordance with the requirements of this Federal Law and other legal acts of the Russian Federation. In this regard, the question arises: what other legal acts of the Russian Federation are meant? Is it only about regulatory legal acts of the Federal Service for financial markets(in particular, the FFMS approved the Regulations on the disclosure of information by issuers of emissive securities (Order of the FFMS of Russia dated October 4, 2011 N 11-46 / pz-n)) or acts of other federal executive authorities, in particular, the same Order of the Ministry of Culture of the Russian Federation of August 25, 2010 N 558? In this regard, it is necessary to clarify in the joint-stock law that we are talking about acts of the federal executive body for regulating the securities market.
Thirdly, it is necessary to differentiate the amount of information received by shareholders depending on the block of shares they own. In accordance with the Federal Law "On Joint-Stock Companies", the charter of a joint-stock company must contain information about the rights of shareholders - owners of shares of each category (type). Therefore, the charter of a JSC should provide for the amount of information that owners of shares of various categories (types) can receive, as well as list the documents that shareholders who own a certain block of shares (for example, own more than 10% of the company's shares) have access to.
The current version of Art. 91 of the Federal Law "On Joint-Stock Companies" provides that "shareholders (shareholder) holding in aggregate at least 25 percent of voting shares of the company have the right to access accounting documents and minutes of meetings of the collegial executive body." All shareholders, regardless of the size of their participation, have the right of access to other documents of the JSC, which the company is obliged to keep. It is clear what is legal regulation"corresponds to the goals of ensuring the information openness of the JSC's economic activities and the possibility of exercising their rights by all its participants, as well as ensuring the necessary balance of rights and legitimate interests of all interested parties in the process entrepreneurial activity joint-stock company and thus the public interest in the development of the joint-stock company as a whole" (Determination of the Constitutional Court of the Russian Federation of January 18, 2011 N 8-O-P on the complaint of Rosneft Oil Company OJSC for violation of constitutional rights and freedoms by the provision of the first paragraph of paragraph 1 Article 91 of the Federal Law "On Joint Stock Companies").
But, on the other hand, the information openness of a JSC leads to its increased vulnerability from corporate blackmailers. "Thanks to the very active policy of the Federal Securities Commission of Russia in the field of ensuring the "transparency" of issuers, many of them at the same time acquired increased vulnerability from corporate blackmailers, without simultaneously acquiring that vaunted investment attractiveness that the Federal Securities Commission of Russia was so baked about."
In order to prevent the information vulnerability of a JSC, it would be possible to differentiate the list of documents to which shareholders have the right to access, depending on the size of their blocks of shares (for example, 10% of shares) and fix such a shareholder's right to receive information in the charter of the JSC.
Fourthly, it is necessary to define in the Law how shareholders are entitled to use the information received, how they are entitled to dispose of the information (documents) to which the joint-stock company provides them with access. The discussion of this issue intensified about a year ago, the catalyst for this process, on the one hand, was the activities of Alexei Navalny, on the other hand, the conflict between the shareholders of Norilsk Nickel. Last autumn Andrey Klishas, President of Norilsk Nickel, submitted proposals to the Bar Association and the National Council for Corporate Governance to "legally limit the right of minority shareholders to receive practically complete information about the activities of large public companies", since this right is often used "exclusively for the purpose of subsequent disclosure information for their commercial purposes.
In this regard, the information letter of the Supreme Arbitration Court dated January 18, 2011 N 144 states the following: “Courts should take into account that when exercising their right to receive information, participants in business companies are not required to disclose the goals and motives that guide them, requiring the provision of information about the company , as well as otherwise justify the existence of interest in obtaining relevant information, with the exception of cases arising from the law "(Clause 1 of the information letter of the Presidium of the Supreme Arbitration Court of Russia dated January 18, 2011 N 144 "On some issues in the practice of consideration by arbitration courts of disputes on the provision information to participants of economic companies").
Is it possible to raise the question of the responsibility of the company's shareholders for the disclosure of information received from the JSC, especially if such information is confidential? This is exactly what the largest Russian JSCs (Rosneft, Transneft, Surgutneftegaz, TGC-2, VTB) are asking for, which are concerned not only with the expansion of shareholders’ rights to access documents of a joint-stock company, but also with the lack of a mechanism to attract minority shareholders to responsibility for disclosure of confidential information.
In an information letter dated January 18, 2011, the Supreme Arbitration Court of the Russian Federation indicated that “according to the third paragraph of paragraph 2 of Article 67 of the Civil Code of the Russian Federation, participants in a business company 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 was warned about the confidentiality of the information received and about the obligation to keep it "(Clause 15 of the information letter of the Presidium of the Supreme Arbitration Court of Russia dated January 18, 2011 N 144).
As you know, at present, it is possible to attract a shareholder for losses caused to the company as a result of the disclosure of confidential information on the general grounds for compensation for harm provided for by civil law. At the same time, it is required to prove the existence of losses, their size and the connection between the actions of the shareholder and the losses of the company, which is very difficult.
Another problem associated with public disclosure is the problem of "depth", the volume of disclosure, in other words, the completeness of disclosure. It is clear that the amount of information to be disclosed must comply with the requirements of the law. But, as D.V. Gololobov, one can write three lines and thirty pages about the position of almost any large joint-stock company in the industry. In both cases, the information disclosed will be different in terms of the depth of disclosure.
Included in the Criminal Code in 2002 Art. 185.1 provides for liability for the provision of deliberately incomplete or false information if these acts caused major damage to citizens, organizations or the state. Therefore, if the concept of "incomplete information" appeared, then there must be both criteria and the concept of "complete information". In the meantime, only the court can determine the issues of completeness of information disclosure.
Thus, it is necessary to maintain a balance between the openness of the company and the desire not to harm its interests, the implementation of the shareholder's right to information to the maximum extent, while simultaneously protecting the interests of the JSC itself. Therefore, the draft law on improving the mechanisms for exercising the rights of participants in economic companies to information should not talk about a purely mechanical increase in the amount of information provided to shareholders. In the case of expanding the information space for shareholders, certain measures should be provided aimed at protecting the interests of the JSC itself. Therefore, a comprehensive and in-depth analysis of the problems associated with the exercise by shareholders of the right to information is necessary, both from the point of view of ensuring the interests of shareholders, and from the point of view of the interests of a joint-stock company.
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 requested documentation.
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
The Laws on JSC 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, planning for him to sell his shares or shares in authorized capital, preparation for participation in the 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.
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. Taking into account the fact 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 sorts 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 company's charter, 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 explanation 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 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 possibility for 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 is financial statements and provides it 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 Securities Commission of Russia dated July 16, 2003 No. in the course of 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.
By general rule Shareholders are not required to disclose the goals and motives they are guided by when requesting 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 are not violated, that he abuses 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 Commission for the Securities Market 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 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 general meeting 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, Russian law on joint-stock companies provides for the exact opposite - the shareholder is granted the right to receive practically 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 may be imposed on a joint-stock company, and in relation to officials applied disqualification up to 1 year.
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 range 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 accountable. 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 ensuring that a bona fide shareholder receives 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 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 principle of materiality.
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 agreements 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 the shareholder in such a situation could be information about the cash flow 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).