Further Decisions regarding Rights to Information of Film Fund Investors of a Public German Limited Partnership – Judgement of BGH dated 5 February 2013 – II ZR 136 / 11

  • Germany
  • 05/27/2013
  • BGH Case Law on Corporate Law

The BGH has dealt with the question whether an investor who has acquired an interest in a closedend fund may demand information about his fellow investors. The BGH granted the investors such right to be informed by the company and the managing director. Investors could acquire an interest in this fund either directly as limited partner in the investment company or indirectly as trustor via a trustee. Trustors with an indirect interest are not identifiable in contrast to limited partners who are registered in the commercial register.

In cases where trustors have an indirect interest, the trustee is registered in the commercial register as shareholder of the fund. The BGH ruled that the shareholders of a partnership have a right to know the trustors with an indirect interest (not registered in the commercial register), thus being their fellow shareholders. The BGH sets out that the contracts of these closedend funds are such that strictly speaking only trustors with an indirect interest have the same legal and economic status as the limited partners with a direct interest.

Thus, also the trustors with an indirect interest have to be treated as shareholders. The shareholder’s request for information is only restricted by prohibition of unlawful exercise of rights (section 242 BGB – German Civil Code) and prohibition of chicanery pursuant to § 226 BGB.