Within the rights of the shareholder, Royal Legislative Decree 1/2010, of July 2, which approves the revised text of the Capital Companies Act (hereinafter, TRLSC), provides for various measures for the special protection of the minority shareholder’s right to information, since they are in a position more susceptible to misinformation. Among them, under Article 265.2 of the TRLSC, in the case of companies that are not obliged to audit their annual accounts, the right of shareholders holding at least 5% of the capital stock to request the Mercantile Registrar to appoint an auditor.
The factual situation focuses on the appointment of a voluntary auditor by resolution of the general meeting for the verification of the annual accounts for the year 2023, when a request for an auditor had already been filed with the Commercial Registry at the request of the minority. The DGSJFP upholds the appeal and revokes the qualification note of the Registrar with respect to the two defects contested by the interested party. On the one hand, the existence of a request for an auditor for the same year, at the request of the minority and, on the other hand, that the appointment of the auditor by the general meeting must comply with the provisions of Article 264 of the TRLSC, which requires that the auditor be appointed before the end of the year to be audited and for a minimum term of three years.
Regarding the first defect appealed, the DGSJFP starts from its more than reiterated doctrine that the purpose of Article 265.2 of the TRLSC is to strengthen the position of minority shareholders, who may request the appointment of an auditor provided that they do so within three months of the end of the financial year. However, as an exception to this general rule, “the origin of the appointment, whether judicial, registry or voluntary, does not frustrate the right of the shareholder, since the auditor, as an independent professional, registered in the Official Register of Statutory Auditors, must carry out his activity in accordance with the legal, regulatory and technical rules that regulate the auditing activity”, especially when the aforementioned activity is governed by the principles of objectivity, independence and impartiality.
In relation to the second defect, the DGSJFP points out that it is reiterated doctrine that in the case of companies that are not obliged to have their accounts audited, a voluntary auditor may be appointed, before or after the close of the financial year to be audited, for such period as is deemed appropriate, and that both the administrative body and the general meeting are competent for such appointment, adding that the voluntary appointment of an auditor at the request of the company will not affect the right of the minority shareholder to have its accounts audited if certain requirements are met: that the voluntary appointment of an auditor at the company’s request is accredited, and that the shareholder’s right to the audit report is guaranteed. Along these lines, the Management Center emphasizes that Article 265.2 of the TRLSC does not grant minority shareholders a right to audit the accounts. exclusive temporary reservation The Company’s management body may not appoint an auditor for three months from the end of the fiscal year being audited, but, as the First Chamber of the Supreme Court has already stated in its Ruling of March 9, 2007, what it guarantees is that the audit will be carried out, but not by a specific and determined professional, ergoThe purpose of Article 265.2 of the TRLSC is not for the audit to be carried out at the request of a specific shareholder, but for the audit to be carried out and for the shareholder to have full knowledge of the company’s accounts.
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