Administrative bodies only have to answer shareholder questions to the extent necessary. This depends on the specific agenda item. If questions are answered incorrectly, incorrectly or inadequately, this will only lead to contestability if the answers were necessary for the shareholders’ decision-making. Using these principles, the Higher Regional Court of Frankfurt am Main (OLG) has dismissed the first instance successful action by shareholders against the discharge decisions of members of the board of directors and the chairman of the supervisory board of a major bank.
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The plaintiffs are shareholders of the defendant major German bank. You are against the decisions of the General meeting in May 2018. As part of the general debate, the General meeting Questions on topics such as Postbank processes, cum-ex and failure to restore, money laundering prevention such as alleged return of contributions to a major shareholder. The defendant’s administrative bodies had given answers. The actions of the members of the Management Board and the Chairman of the Supervisory Board were subsequently approved by the shareholders for the 2018 financial year.
The plaintiffs seek the annulment of the discharge resolutions against four board members and the chairman of the supervisory board. They claim, by the information that was not provided, that was not provided completely, or was inaccurate or disguised, was withheld from an average shareholder an essential element in forming his will in the discharge. The district court had upheld the claim. The appeal directed against this was successful before the OLG. The decisions of the discharge are not contestable, the OLG justifies the change. There was neither a violation due to incorrect, incomplete or refused disclosure of information, nor did the majority of the shareholders voting for discharge violated their social loyalty obligations.
Basically, every shareholder is in the General meeting to provide information on company matters from the board of directors. However, this right to information is limited by the criterion of necessity and the board’s right to refuse information. Information is required if it is an essential element in the shareholder’s judgment. The breach of the duty to provide information in connection with a discharge is only relevant if it affects the assessment of the trustworthiness of the company’s administration. “Given the multitude of by the management made or (business) measures to be monitored by the supervisory board could be information of sufficient relevance for the assessment of the TOP discharge that relates to compliance with the law and the provisions of the articles of association or to the presentation of the company in public or to a significant extent affect the company’s financial and earnings position, ”emphasizes the OLG.
On the basis of this standard, no relevant violation of the Determine the obligation to provide information. The shareholder must demonstrate that the information given is incorrect. In the present case, that is not the case. Insofar as some questions have not been properly answered, this concerns the area of information that is no longer required. The effectiveness of the discharge resolutions is not affected. The majority of shareholders did not violate social loyalty through their voting behavior. It could not be ascertained that the shareholders’ conduct in breach of duty on the part of the company’s organs was apparent during the discharge.
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