Over the years, the Directorate-General for Legal Security and Public Attestation ("DGLSPA") has issued several rulings out on this issue on multiple occasions. Initially, the doctrine of the DGLSPA did not allow the deposit of the annual accounts when the auditor's report issued an unfavorable opinion or it was denied, however, this doctrine has now been superseded: this change of criterion is the object of this article.

As is well known, one of the main reasons why, in certain cases, it is mandatory to have the annual accounts audited is to obtain a technical opinion- the auditor's report - on whether the accounts, in all significant respects, express a true and fair view of the Company's assets and financial position and results, thus offering third parties who are going to contract with it, and to the public in general, higher quality in the financial information of companies.    

According to the Audit Law, there are 4 types of report: (a) favorable; (b)with qualifications; (c) unqualified; and (d) deny opinion.

Annual accounts whose audit report expresses a favorable opinion, or with qualifications, comply with the legal requirement for their deposit, without the Registry having to evaluate the content of the Report. However, when the Audit Report presents an unfavorable opinion, or refusal to express opinion, the DGLSPA had initially ruled on the subject rejecting access of the accounts to the filing and publication, on the grounds that the report showed that the accounts did not present true and fair view on the company's financial situation, thus failing to comply with this accounting obligation, which in practice does not provide any information to third parties for which the Registry is supposed to exist.

This position has evolved as nowadays the DGLSPA accepts that if the audit report with a denied or adverse opinion incorporates explanations and breakdown of amounts involved on which the auditor relies to deny or qualify the opinion, the accounts can be deposited at the Registry, and therefore, be publicly accessible, thus giving disclosure, information of interest to the companies and the public in general, the main purpose of the annual accounts publication legal requirements.

This is the case of the DGLSPA resolution of 3 October 2023, which, in addition to allowing access to the accounts to the deposit, sets the the cases in which annual accounts with an audit report with an unfavorable or negative opinion will not have access to the Register:

a)      The company has failed to comply with the duty to cooperate with the auditor (requirement of Audit Law).

b)      It was not possible to carry out the audit.

This helps to clarify this issue by improving legal certainty as regards annual accounts and financial information and transparency of businesses.

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