The nullity of the annual accounts does not automatically entail the nullity of those of subsequent years

Once the annual accounts for several years have been approved at the same general meeting, the nullity of the accounts for one year does not automatically entail the nullity of the accounts for subsequent years, which must be analyzed independently.

In the case under examination, the minority shareholder of a corporation filed a lawsuit requesting the nullity of the resolutions adopted at the ordinary general meeting of December 3, 2015, concerning the approval of the annual accounts for the years 2010 to 2014.

The shareholder argues that the resolutions on the 2010 and 2011 accounts are null and void due to the absence of an audit performed by the auditor appointed by the Commercial Registry at the request of the minority. Regarding the 2012 to 2014 accounts, the plaintiff argues the nullity based on the existence of accounting operations that distorted the true and fair view of the company, conflicts of interest and fictitious provisions without justification.

In the first instance, the claim was partially upheld, declaring only the nullity of the resolutions approving the 2010 and 2011 accounts. Both parties appealed: the minority shareholder also requested the nullity of the agreements from 2012 to 2014, and the company defended the validity of all the agreements.

The Provincial Court (AP) of Santa Cruz de Tenerife, in its judgment no. 818/2024, dated May 29, 2024, dismissed both appeals and confirmed the first instance judgment.

Firstly, the AP considered the agreements approving the 2010 and 2011 accounts null and void due to the lack of an audit by the auditor appointed by the Commercial Registry, reiterating the existing jurisprudential doctrine according to which the lack of an audit report violates the minority shareholders’ right to information and empties the legal power contemplated in Article 265.2 of the Capital Companies Act (LSC) of its content. Regarding the accounts for the financial years 2012 to 2014, the AP rejected the grounds of challenge, defending that the nullity of the accounts of one fiscal year does not imply the nullity of those of subsequent fiscal years due to the principle of independence of each accounting year. In this sense, each fiscal year must be evaluated according to its own merits and circumstances, and the nullity of the accounts of one year does not necessarily imply that the accounts of the following years are also null and void.

In the present case, the AP ratifies that the irregularities that led to the nullity of the 2010 and 2011 accounts – the lack of an audit performed by the auditor appointed by the Registry at the request of the minority – were not repeated in the following fiscal years. Furthermore, the AP, with reference to the STS of July 9, 2012, clarifies that it is not necessary to correct the accounts of subsequent fiscal years approved during the period in which the challenge was pending, provided that the nullity of the accounts of certain fiscal years has been confirmed. However, for the accounts pending approval, the relevant modifications or updates must be taken into account.