Competence for the appointment of a voluntary auditor

The appointment of a voluntary auditor of a company may be made by the general meeting or by the management body, before or after the closing of the fiscal year to be audited and for the term deemed convenient and without consideration of the minority’s right to have an auditor appointed.

The Resolution of May 21, 2024, issued by the General Directorate of Legal Security and Public Faith (DGSJFP), analyzes whether the appointment of a voluntary auditor by the management body before the closing of the fiscal year is allowed. In the case under analysis, the Commercial Registrar rejected the registration of the auditor appointed by the management body of a company that is not obliged to carry out an accounting verification before the end of the auditable fiscal year, arguing that this would mean excluding the possibility of voluntary appointment by the general meeting and, if applicable, the right of the minority shareholders ex art. 265.2 of the Capital Companies Act (LSC).

In its resolution, the DGSJFP revoked the negative qualification, reiterating its doctrine on the appointment of an auditor in companies that are not obliged to have their accounts audited. In this regard, the DGSJFP points out the following: (i) that the legal regime for the appointment of auditors in companies subject to accounting verification is not directly applicable to companies in which there is no such obligation; (ii) that the mangament body is perfectly entitled to appoint an auditor in cases in which the company is not subject to accounting verification; (iii) that the appointment of a voluntary auditor may be made at any time, before or after the end of the fiscal year to be audited; (iv) that such voluntary appointment may only be registered if it is proven, with a reliable date, that it was made prior to the date of the request for the appointment of the auditor by the minority ex art. 265.2 LSC; and (v) that the appointment of a voluntary auditor must include the term for which he is appointed, although the minimum term of three years of art. 264.1 LSC is not applicable, but rather the specific term resulting from the contract stipulated with the auditor.

All of the above is without prejudice to the strong protection afforded to the minority shareholder, since his request can only be rejected if a voluntary auditor has already been appointed by the company, guaranteeing the shareholder his right to the audit report, either through the registration of the auditor on the company’s file or through the delivery of the report. Likewise, if the company has already appointed and registered the appointment of the voluntary auditor in the Commercial Register, and subsequently intends to revoke it (to the detriment of the shareholders who could have exercised their right under art. 265.2 LSC), this would not be possible. Finally, the DGSJFP recalled that, if a shareholder is truly interested in the auditor being appointed by the general meeting, he always has the possibility to request the convening of the meeting and to include this matter on the agenda under art. 168 LSC.