The conflict arose when the company’s general meeting agreed to appoint a voluntary auditor for a financial year that had already ended, a decision that was rejected by the registrar of companies. There were two reasons for the negative decision: firstly, the registrar argued that the appointment had to be made before the end of the financial year and for a minimum period of three years, in accordance with article 264.1 of the Capital Companies Act (LSC); secondly, he pointed out that there was an ongoing procedure at the request of a minority shareholder for the appointment of an auditor for the same financial year, which, in his opinion, prevented registration.
The DGSJFP, in resolving the appeal, dismissed both defects on the grounds that, in companies that are not legally obliged to have their accounts audited, the general meeting or the administrative body may appoint an auditor at any time, without the need to do so before the end of the financial year or to comply with a minimum contracting period. This is permitted by the current regulatory framework, given that the restrictions of article 264.1 LSC apply only to companies subject to mandatory audit.
On the other hand, the Directorate General clarifies that the right of a minority shareholder to request an audit of the company’s accounts is not affected by the existence of a prior voluntary appointment. The auditor, as an independent professional registered in the Official Register of Auditors, must act in accordance with the applicable regulations, regardless of whether his or her appointment comes from the company, the registrar or the judge.
Likewise, it is specified that for a voluntary audit to be able to prevent an audit request by a minority shareholder, two requirements must be met: (i) that the appointment of the auditor by the company is reliably proven and (ii) that the shareholder is guaranteed access to the audit report.
Finally, the DGSJFP revises its previous doctrine and concludes that, although it was previously required that the voluntary appointment should precede the request of the minority shareholder, the current interpretation gives priority to the effectiveness of the appointment if it is duly accredited in the documentation presented, especially in cases such as the one analysed, in which the procedure initiated by the minority shareholder had not yet concluded with a definitive appointment.
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