This decision of the higher regional court of Dusseldorf concerns an information request relating to details of the appointment of the chairman of the executive board of a subsidiary, which was asserted by a minority shareholder of a stock corporation by way of legal action for disclosure in accordance with secs. 131 sub-sec. 1 sentence 1, 132 German Stock Corporation Act (Aktiengesetz, AktG). Sec. 131 sub-sec. 1 sentence 1 German Stock Corporation Act affords to shareholders the right to be provided with information on the company’s affairs, to the extent that such information is necessary to permit a proper evaluation of the relevant item on the agenda. The shareholder based his request on the grounds that in the past preliminary proceedings had been initiated against the newly appointed chairman on the suspicion of criminal offences, including embezzlement, delayed insolvency petition and fraud, and that the requested information was crucial for the decision on the discharge of the executive board and the supervisory board of the parent company.

As the court took the view that the information, which had already been provided to the shareholder, was sufficient, it ultimately rejected the information request. However, in the reasons given for its decision the court specifies that the appointment of executives of a subsidiary may be important for the decision of a shareholder to grant discharge to the supervisory board of the parent company. Although according to sec. 84 Stock Corporation Act only the supervisory board of the subsidiary is responsible for appointing members of the subsidiary's executive board, the supervisory board of the parent company has to oversee the appointment of executives of subsidiaries in connection with its general supervision duties. If, as has been the case in the matter at issue, members of the executive board of the parent company are at the same time members of the supervisory board of the subsidiary, the appointment of executives of the subsidiary may in view of their factual influence furthermore be relevant for decisions on the discharge of the parent company's executive board members. Against this background, a right of information on the appointment of executives of subsidiaries may in fact exist.

For the full text of the decision in the German language, please click here. If you are interested in further information on this topic, please do not hesitate to contact Christine Oppenhoff.