In its decision of 24 January 2023, the Directorate General for Legal Security and Public Faith dismissed the appeal lodged against the refusal of the Commercial Registrar to deposit the annual accounts of a company. The refusal of the deposit was due, on the one hand, to the lack of mention of the application of the result in the certification of the corporate resolutions and, on the other, to the lack of verification of the electronic signature supporting the certificate.
The Governing Centre states that the application of the result of a company’s annual accounts is a sine qua non condition for the corresponding filing of the annual accounts to take place. Thus, Article 279 of the Spanish Companies Act (LSC) lists the matters that must be included in the certificates of corporate resolutions referring to the annual accounts, among which is included the manner in which the profit for the year is to be distributed. Such is its importance that Article 253 of the LSC already obliges company directors to include a proposal for the distribution of profits in the annual accounts. This omission is therefore an insurmountable defect that makes it impossible to file the annual accounts.
In relation to the verification of the electronic signature that covers the certificate, the Directorate General has drawn up a doctrine on the requirements for filing the annual accounts with the commercial registers online. Articles 279 and 280 of the LSC and Article 366 of the Commercial Register Regulations stipulate that the appropriate signature is mandatory as a necessary clause for filing. The final aim of this line of action is to guarantee, regardless of the means of filing, that the accounts filed are precisely those approved by the company’s General Meeting.
In line with the above, in the case of filing annual accounts in electronic format online with electronic signatures, the correspondence between the file containing them and the file containing the certificate of the resolution approving the meeting is carried out by the application itself. In the case of the electronic signatures contained in the certificate of the meeting resolution, only if the electronic signatures are duly validated by the corresponding computer application can this due correspondence be established with those who, according to the Register, are legitimised to do so (Art. 366.1.2º RRM). Thus, the lack of validation of the electronic signature of the signatory of the certificate of the resolution approving the annual accounts means that the electronic signature cannot be considered as having been affixed and therefore create the required certifying effects.
Lastly, in order to remedy the defects set out, the Directorate General states that they could either generate a new electronic signature that is duly able to be validated or provide the certificate in paper format and signed in handwriting by the person authorised to do so.
