Information Rights of a Former Member of the Board of Directors

Facts

A., a former shareholder and member of the Board of Directors of X. AG, filed a lawsuit against X. AG and B., the new Chairman of the Board of Directors, to obtain copies of the company's annual financial statements for the financial years 1999, 2000 and 2001. A. invoked his right as a former member of the Board of Directors under Art. 715a CO to be informed about the course of business.

The Commercial Court partially granted the claim and ordered X. AG to hand over the requested annual financial statements to the plaintiff. X. AG then appealed to the Federal Supreme Court.

Considerations

The Federal Supreme Court held that a former member of the Board of Directors generally no longer has a sufficient interest in asserting the right to information under Art. 715a CO, as this right is granted to the Board of Directors to fulfill its duties and expires upon termination of the mandate.

However, an exception exists if the former director needs the information to assess disputed claims - in particular,…