The extent of the right of inspection depends on whether the company has an auditor or not.
In the case of a company without an auditor, the shareholder has an unrestricted right of inspection. However, if an auditor exists, the shareholder must demonstrate a legitimate interest in the inspection.
The reason for this distinction is the subject of the right of inspection. It refers to “books and files”, which are regularly part of the audit. However, because a shareholder’s interest in inspection may differ from that of the auditor, the standard for the shareholder’s legitimate interest must not be set too high.
The right of inspection grants access to “books and files”. What exactly this includes is not clear. In principle, all documents that must be kept in accordance with Art. 962 CO are covered. The open wording also suggests that only those documents are included whose content may in some way affect the balance sheet.
Limits of the right to information (Art. 802 para. 3 CO)
The right to information must only be granted to the extent that the shareholder requires it for his or her membership. Exercising this right to pursue company objectives or to commit abuse is not permitted.
The right of inspection is also subject to the principle of proportionality. Only the information required to fulfill the interest in the information may be requested. If the effort required of the management is disproportionately high in comparison, the right of inspection can still be refused.
Furthermore, the managing directors can restrict the right of inspection if there is a risk that the information will be misused and that the company would suffer damage as a result. However, this would have to be asserted and proven by the company.
In summary: If a company has no auditors, each shareholder has the right to inspect the company’s “books and records”. The right of inspection may only be restricted if the interests of the company are endangered and this is proven.
If you have any questions about company law, our lawyers will be happy to advise you.