Denial of Shareholders' Right to Information in Marbella

A blank criminal law: the referral to Articles 196 and 197 of the Spanish Companies Act

Article 293 of the Criminal Code punishes de facto or de jure directors who, without legal cause, deny or prevent a shareholder from exercising the rights of information, participation in management, oversight of company activity, or pre-emptive subscription of shares recognized by law. None of these rights is defined in the criminal provision itself: their exact content — what information may be requested, within what time limit, through what channel, subject to what limits — is set out in Articles 196 and 197 of the Spanish Companies Act (Ley de Sociedades de Capital), which govern the shareholder's right to information before and during the General Meeting. This referral technique requires that, in every proceeding for this offense, the applicable commercial legislation be examined with the same rigor as the criminal provision itself, since it constitutes the necessary premise for the latter.

The element "without legal cause": the boundary with a mere commercial infringement

Case law has built, on the normative element "without legal cause," a restrictive doctrine that requires an additional degree of seriousness beyond simple non-compliance with corporate legislation:

"...el tipo se limita a supuestos en los que los administradores nieguen o impidan el derecho sin alegar causa alguna, a aquellos en que alegan una causa legalmente inexistente o a aquellos en que la alegación de una causa legal sea manifiestamente abusiva."

(The offense is limited to cases in which directors deny or prevent the right without alleging any cause, cases in which they allege a legally non-existent cause, or cases in which the invocation of a legal cause is manifestly abusive.) The Supreme Court itself has clarified, in earlier rulings, that not every refusal or difficulty in accessing information constitutes an offense, but only conduct that reveals openly obstructive and persistent behavior, leaving cases of mere insufficiency or disagreement over how the right was satisfied to the commercial track. This distinction — between civil non-compliance, remediable by challenging the corporate resolution, and criminally relevant obstruction — constitutes the first and most effective front of our defense when representing directors against this type of accusation.

The essentiality test for the information

The most recent commercial case law has refined the standard for assessing whether the information denied was legally relevant — a doctrine we transpose to the criminal sphere as it shares the same normative premise: it is not required that the information be strictly indispensable, but rather that it be reasonably useful or relevant so that the shareholder could form their voting decision with full knowledge of the specific matter on the agenda. Applying this essentiality test — analyzing case by case the volume, nature, and real significance of the information requested against what was denied — makes it possible to distinguish a substantial deprivation of the right, which is criminally relevant, from a partial or incidental denial with no real significance for the shareholder's position.

The limits on the shareholder's own right: abuse of right

The right to information is not unlimited. Article 197.6 of the Spanish Companies Act itself provides for the liability of a shareholder who exercises their right abusively, and commercial case law has recognized that a request for information that is disproportionate, untimely, repetitive, or aimed at hindering the ordinary functioning of the company — at times used strategically by minority shareholders as a means of pressure to force their exit from the share capital on advantageous terms — may constitute precisely the "legal cause" that excludes the criminal liability of the director who denies it. This defensive avenue, often underused, requires establishing the disproportionate or untimely nature of the request, as well as the absence of a genuine legitimate interest on the part of the requesting shareholder, and is one of the pillars of our defense when the director has acted precisely to protect the company's interest against a distorted exercise of the right to information.