In the Official State Gazette of the 7th of July 2022, the Resolution of the Directorate General of Legal Security and Public Trust – GDLSPT (Dirección General de Seguridad Jurídica y Fe Pública – DGSJFP) – of the 14th of June 2022, was published, in relation to the refusal of the registrar of the commercial registry of Huelva to register the appointment of a voluntary auditor for the fiscal years 2020 and 2021.
In this case, the sole director of a limited liability company (L.L.C., or sociedad de responsabilidad limitada (S.L.), in Spanish) certified that the company adopted the decision to appoint a voluntary auditor for the verification of the annual accounts of the fiscal years 2020 and 2021. Such an appointment was accepted by the auditor.
The registrar did not record the registration for the following reasons:
(i) There exists a proceeding for the appointment of an auditor at the request of a minority partner (Article 265.2 of the Spanish Companies’ Act) for the fiscal year 2020, and it has been resolved that the appointment of an auditor is appropriate.
(ii) The registrar blocks new registrations through the formal closing of the company records due to the failure to deposit the annual accounts of the fiscal years 2018, 2019 and 2020. The registrar clarified that the accounts of the fiscal years 2018 and 2019 must be duly audited by an auditor appointed by the register, as well as those of the fiscal year 2020, as designated in the aforementioned proceeding.
An appeal was filed against this decision, alleging the following:
a) That the resolution via which the appointment of the auditor was approved, at the request of a minority partner, was not notified until December 2021, thereby resulting in the company being in a defenceless legal position with an excessive delay of the legally-provisioned deadlines for the proceedings;
b) That there does not exist an auditor designated for the fiscal year 2020, nor was there prior to the auditor appointed by the company;
c) That, upon the company’s appointing of the same auditor that the Commercial Registry designated for the fiscal year 2019 at that time, there is no detriment to the minority partner;
d) That the company has not been able to oppose the request to appoint an auditor, given that they were not aware of it, and
e) That the auditing company appointed at the time by the Commercial Registry for the verification of the annual accounts of the fiscal year 2018 did not communicate with the company, as a result of which the annulment of its appointment and the appointment of a new auditor is requested, this being the person that has been appointed by the company.
The Directorate General judges that the appeal cannot be successful, since, with the exception of the latter allegation by the company, the rest of the issues raised may not be the object of this appeal proceeding, as in accordance with Article 326 of Mortgage Law.
Therefore, “issues that have been aired as part of a different proceeding, such as that in which an auditor was appointed at the request of the minority” may not be open to review in this appeal. It´s within this aforementioned proceeding where the company may, in exercising its right of audience, oppose the pretension of the minority partner, highlighting the motives that it deems to be pertinent, and, where appropriate, exercise the right to appeal against the resolution dictated with regards thereto, by the Commercial registrar.
The Directorate General concluded that “if there does indeed exist a resolution of appointment of an auditor upon the request of the minority partner, according to Article 265.2 of the Spanish Companies´ Act, and the proceedings to that effect are in the process of being finalised, the appointment of a voluntary auditor cannot be registered without leaving to no effect said resolution.” “If, as the company affirms, the proceeding of the appointment of an auditor has been carried out with infringement of its right to audience or in violation of deadlines, the legal regulation makes available the remedies so that, in the adequate proceeding and with the intervention of the interested persons, the company may defend its legal stance.” “If the company considers that there exists a legal cause so that the revocation of the appointment of an auditor and the appointment of another may proceed, then the company should initiate the opportune proceeding, under which it may allege the motives that it deems appropriate and in which, after the pertinent hearing procedures, it may be resolved appropriately. As long as this is not the case and as long as the registration situation mirrors that found in the proceeding, the appeal must be dismissed”.
Therefore, the Directorate General dismisses the appeal and confirms the decision of refusal.
Vilá Abogados
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22nd of July 2022
