I. Introduction
In our previous information notes titled “EXTRAORDINARY MEASURES FOR LEGAL ENTITIES DUE TO THE STATE OF ALERT (I) and (II)” we presented the extraordinary measures foreseen in articles 40 and 43 of Royal Decree-law 8/2020 of 17th March, applicable to private law legal entities as from said date, and wherein extraordinary measures (1), (3), (4) and (6) were partially amended by Royal Decree-law 11/2020, of 31st March, which entered into force on 2nd April.
One of the issues omitted by said Royal Decree-Laws is the impact of said measures regarding the legalisation of the official record books of companies.
II. Legal framework
The duty for businesses to keep certain books referring to their accounting and other matters is set out in articles 25 and 26 of the Spanish Commercial Code.
The legalisation of such books by electronic means must be carried out within the four months following the closing of the fiscal year, in accordance with article 27.3 of the Spanish Commercial Code, article 333.2 and 333.3 of the Commercial Register Regulations and the circular issued by the General Directorate of Legal Security and Public Trust – DGLSPT (formerly known as the General Directorate of Registries and Notaries -Dirección General de Registros y Notariado– “DGRN”) of 12th February 2015, regarding the legalisation of the official company records books, in application of what is set forth in article 18.1 of Act 14/2013, of 27th September, for support to entrepreneurs and their internationalisation.
In the majority of companies, said term of four months theoretically finalised on 30th April 2020.
III. Resolution of the DGLSPT of 10th April 2020.
Nevertheless, the resolution of the DGLSPT of 10th April 2020, of consultation of the impact which, regarding the legalisation of company books, results from article 40 of the Royal Decree-Law 8/2020 of 17th March on extraordinary measures to address the financial and social impact of COVID-19, clarified that the suspension of the deadline for drawing up the annual accounts set forth in article 40.3 of Royal Decree-Law 8/2020 must be deemed applicable to the duty of filing companies’ books for legalisation, although it does not make explicit reference thereto.
The DGLSPT argues its decision, in summary, as follows:
- Although the deadlines for drawing up the annual accounts and for the legalisation of the company records books are not linked in the regulations, given that the deadlines for both refer to the closing of the fiscal year, there is a widespread use according to which the annual accounts are drawn up and subsequently the books are prepared for their legalisation.
- Inasmuch as these books reflect the financial status of the company at the date of the closing of the fiscal year, it is logical to link the deadline for their legalisation to that of the drawing up of the annual accounts. In this way, once the term for drawing up the annual accounts elapses, the company records books are prepared in accordance thereto. Thus, it makes sense that it is then when the legalisation of the books is required.
IV. Conclusion
Therefore, once the state of alert ends (a circumstance that has not yet occurred to date), we should take into account the following parameters:
a) Companies, for which at 14th March 2020, the term for drawing up their annual accounts had already elapsed: they are not affected by the suspension, thus the general rules apply to the legalisation of their company records books.
b) Companies whose date of closing of the fiscal year is subsequent to the date of finalisation of the state of alert (when said date is determined): they shall legalise their company records books in accordance with the general rules.
c) Companies for which as of 14th March 2020 the term for drawing up their annual accounts had not finalised (which is the case of the vast majority): they may file their company records books for legalisation within the term of four months as from the date of finalisation of the state of alert.
Without prejudice to the above, those companies which have duly prepared their books and wish to effectively legalise them, may do so at any time in spite of the state of alert being in force.
Carla Villavicencio
Vilá Abogados
For more information, please contact:
8th May 2020
