The GmbH shareholder has a comprehensive right to information from the company, which, according to case law (6Ob11/08y), also includes the right to inspect the books. A shareholder may not only inspect the books of the company but also of the wholly-owned subsidiaries of the company within fourteen days prior to the shareholders’ general annual meeting at which the annual financial statements are to be approved.
The right to information can be exersiced also outside of the shareholders’ general meeting, but it must not be exercised in an abusive manner. The right to information and the right to inspect the books also includes the right to make copies and reproductions (e.g. digital photographs). The shareholder may also engage an authorised lawyer or auditor to exercise its right (6 Ob 89/16f). The shareholder may therefore also use several experts, provided that this is not to be regarded as harassing or abusive in individual cases with regard to the associated disruption of the company’s business or for other reasons.
The question of whether the requested disclosure of information is being sought in an abusive manner or is impossible can usually only be answered on the basis of the particular circumstances of the individual case. In one of its rulings (6 Ob 323/98p), the Austrian Supreme Court refers to case law in Germany, according to which a request for information is considered to be abusive, for example, if it is intended to provoke a disproportionate administrative burden and the shareholder’s own interest in the requested information is of little relevance. Abuse of rights is deemed to exist, for example, if the shareholder seeks to obtain business information that he needs and wants to use for his competing company (6 Ob 215/97d).
If the managing director refuses to allow the inspection of the books, this can be enforced by court order and a fine can be imposed on him. If the managing director continues to refuse access to the books despite the fine, in the most extreme case the managing director can even be threatened with imprisonment. If necessary, the managing director would therefore have to resign from his position if he wants to avoid penalties (3 Ob 48/11x).