Consequences of the approval of the annual accounts prior to the availability of the auditor’s report

The date of the audit report, when dated after the shareholders‘ meeting, proves the infringement of the right of the shareholders to have all the information necessary to make informed decisions, even in cases where the audit report is unobjectionable or favourable, by virtue of the shareholders’ right to have such a report before approving the accounts.

The Resolution of 16 May 2024, issued by the Directorate General for Legal Certainty and Public Faith (DGSJFP), analyses a case concerning the filing of a company’s accounts, where the situation arises that the annual accounts were approved at a meeting before the auditor’s report was available. The main issue revolves around the shareholders’ right to information and the validity of the resolutions adopted in these circumstances.

The Commercial Registrar refused the filing of the accounts on the grounds that since the auditor’s report was issued after the date of the meeting, it is clear that the accounts were approved without the auditor’s report. Therefore, the accounts are required to be approved again, this time together with the audit report, in order to comply with the applicable regulations.

The decision was based on article 93 of the Capital Companies Act (LSC), which establishes the rights of shareholders to information in the notice of meetings; articles 272, 279 and 280 of the LSC, relating to the obligation to audit the annual accounts and the procedure for their approval; as well as articles 6, 58, 366 and 368 of the Companies Register Regulations (RRM), which regulate the formal requirements for the filing of accounts.

The DGSJFP, in its decision, confirmed the qualification note of the commercial registrar, maintaining that it is not possible to admit the accounts for filing if the audit report is dated after the date of the meeting that approved them. If the audit report is not available at the time of the meeting, the resolutions approving the accounts adopted by majority vote are null and void. This nullity prevents the filing of the accounts with the Commercial Registry.