Vorabinformation an Grossaktionäre: Grenzen und Möglichkeiten nach Gesellschafts- und Kapitalmarktrecht

Major shareholders occasionally seek additional or more detailed information from the board to assess the state of their company’s affairs, to ensure that the directors are behaving satisfactorily or, if not, to act upon their dissatisfactions and to influence corporate decision-making. This article deals with the question whether such selective supply of information to major shareholders is compatible
with the basic corporate principle of equal treatment. If the shares are listed on the SWX Swiss Exchange, the capital market related right of information, which sets a higher threshold, applies, i.e. the shareholder information policy must comply with the more restrictive equality of treatment requirement striving for a «level playing field». The authors hold that information cannot always be provided on an absolute equal basis, rather that some inequalities of treatment are possible if justified. Although major shareholders are not privileged in terms of their status of information, upon substantial request, an exclusive passing on of additional or more detailed information during the financial year can be justified. However, the «abstain or release»-principle applies with respect to any price-sensitive facts that would provide insider information to individual shareholders, i.e. such information must be disclosed to an unlimited group of stakeholders.