Droits à l'information des actionnaires et actions sociales des associés en France et Allemagne.

Abstract

Most recently, the focus of the increasingly broad discussion on corporate governance has been on the role shareholders play within the corporate governance system of stock companies. Applying a comparative approach, the present paper examines one of the legal institutions supporting the position of shareholders of large public corporations : the information rights. These rights have gained importance for many questions of corporate governance, e.g. for the formulation of shareholders’ derivative suits as an instrument to control the activities of executive as well as supervisory boards, a matter which has also found considerable academic interest. The determination of the respective legal positions of shareholders and other stakeholders to a large extent depends on how the interest groups to whom the corporation is obliged, put them into operation. Recently, France and Germany had to face some kind of backlog demand in that, in those interest of the competitiveness of corporations on the capital markets, the neglected interests of stockholders needed to be rediscovered and reactivated. As opposed to US-American law, under German and French company law information rights of stockholders typically are determined and specified by mandatory statutory rules. German company law – de lege lata – does not consider the stockholders to be “watchdogs of the law” having a general control function vis-à-vis the administration, but merely offers them the possibility of exercising certain membership rights. Consequently, information rights of stockholders do not amount to a comprehensive claim of the stockholders to be fully informed by the executive board nor does the executive board merely act as trustee of the stockholders. Rather, the objective of the information right is to put minority stockholders in a position to uncover opportunistic behaviour of major shareholders, and to prevent such behaviour by way of seeking injunctive relief and bringing suit for compensation or damages. Therefore, it is not to be expected that, by relying alone on shareholders making use of their rights, the capital market will become sufficiently informed and transparent. By contrast, in a model of corporate governance providing for informational investor protection, as is the case under US-American law, corporate information rights of stockholders do have a more important role to play. The nexus-of-contracts theory of the firm tries to construe corporations as a network of interlinked relationships of parties. This is why, due to a tradition of conceiving of stock companies as a contractual arrangement between shareholders, a shareholder primacy norm will meet with less opposition under Anglo-American law than under German company law. Instead of establishing mandatory rules of company law, the contract theory of the company trusts in the market mechanisms as a way to control the company. Moreover, by providing for the possibility of derivative suits akin to an actio pro socio, US-American law has strengthened the role of shareholders with respect to the control of the activities of the executive board. Obviously, information rights of stockholders will gain importance accordingly, since, in the absence of sufficient information, it would be difficult to successfully sue for damages in case of breach of duties of care or of duties of loyalty.