This is the Resolution of the General Directorate for Legal Certainty and Public Faith dated May 21st 2024, published in the Official State Gazette on July 3rd 2024.
The Commercial Registry had previously refused to register the voluntary appointment of an auditor by the management body of a company, on the grounds that the law attributes the power to appoint the auditor to the general meeting, without distinguishing whether the appointment is made voluntarily or by legal imperative.
In addition, the Commercial Registry justified its resolution stating that, if the voluntary appointment of the auditor by the company's management body were to be registered, the right of the general meeting to appoint the auditor and the right of the minority of shareholders to request the Commercial Registry to appoint the auditor would be prevented.
The General Directorate upholds the appeal and revokes the resolution provided by the Commercial Registry, making an interesting review of its previous resolutions in this connection.
Based on this previous doctrine, the General Directorate indicates that the legal regime governing the appointment of auditors by legal obligation is not directly applicable to the voluntary appointment of an auditor and, consequently, states that, outside the cases of mandatory appointment of an auditor, the company's management body (and also the general meeting) may voluntarily appoint an auditor to audit the annual accounts, to the extent that the Companies’ Law does not confer exclusive powers to the general meeting.
Furthermore, the General Directorate states that the right of the minority shareholders to request the Commercial Registry to appoint an auditor does not mean that the audit has to be carried out by a specific firm or professional, nor that there is an exclusive reservation for the appointment to be made precisely by the person appointed at the request of the minority shareholder, so that the prior voluntary appointment cannot be made by the management body.
In addition, the General Directorate notes that in cases of voluntary appointment of an auditor:
- The obligation to settle a minimum term of three years is not required, although it is necessary to determine the term of appointment.
- The auditor may be appointed at any time, even if the financial year to be audited has ended.
- In the event that the minority of shareholders has applied to the Commercial Registry for the appointment of an auditor, the registration of the voluntary appointment of the auditor can only be registered if there is evidence that the appointment was made prior to the date of the application by the minority of shareholders.
- The minority shareholders' request for the appointment of an auditor can be rejected if the company has already appointed a voluntary auditor and the shareholder's right to the issue and delivery of the auditor's report is guaranteed, which can only be achieved by registering the appointment in the Commercial Registry.
- It is not possible to register the revocation of the appointment of the company's voluntary auditor to the detriment of minority shareholders who could have exercised their right to request the appointment of an auditor from the Commercial Registry.
[[This publication is for information purposes only and does not constitute legal or technical advice]]
