COVID-19 Spain / Accounting duties

The Spanish government response to the impact of COVID-19 on the field of Company Law. Royal Decree Law 8/2020 of March 17^th, on extraordinary and urgent measures to address the economic and social impact of COVID-19. Accounting duties.

" The state of alarm due to the COVID-19 crises was declared in Spain by Royal Decree 463/ 2020 of March 14^th being subsequently prorogued in two occasions since. At the time of writing these lines a third prorogue of the state of alarm is foreseeable (this would be until May 9^th). 

Out of Royal Decree Law 8/2020 of March 17^th, as amended by Royal Decree Law 11/ 2020 of March 31^st, a series of extraordinary measures applicable to the functioning of the governing bodies of Private Law legal entities were established (RDL 8/2020 hereinafter, https://www.boe.es/buscar/act.php?id=BOE-A-2020-3824).

Art. 40.3 RDL 8/2020 contains a provision of particular importance regarding the compliance with the duty to formulate annual accounts as set in art. 253 of the Spanish Corporations Act. As a consequence of the declaration of the state of alarm the statutory deadline of three months after the closing of the previous financial year has been interrupted- although art.40.3 RDL 8/2020 refers to suspension- and the three-month period granted for the preparation of such documents is referred to the date on which the state of alarm ends. This rule is completed with a reminder of the validity of the annual accounts formulated during the state of alarm period for those cases in which legal entities governing bodies do not stay to the aforementioned interruption of the deadline as set in the Corporations Act (see paragraph 13 of the first Final Provision of RDL 11/2020 that amends and gives a new redaction to art. 40.2 of the RDL 8/2020).

Accounting verification will be validly carried out as well whether this is during the ordinary statutory period set in accordance to Corporations Act provisions or during the extraordinary two months extension referred to the end of the state of alarm (art.40.4 RDL 8/2020).

For those companies that had formulated their annual accounts before the declaration of the state of alarm, the possibility of having the proposal for the application of the results replaced with a different one is granted. Although for this to take place it is required that the governing body justifies that this change is made on grounds of the scenario resulting from the COVID-19 crises and that a written statement from the auditor is provided. In her statement the auditor must establish that this change would not have modified her audit opinion if she had known at the time of its signing (art. 40.6 bis II RDL 8/2020).

Likewise, and in this case for those companies that had already called for the holding of an ordinary general meeting to vote on the accounts, directors are allowed to withdraw their proposal on the application of the results for the purpose of submitting a new one to be voted on in another general meeting. This last one must be held within the period statutory foreseen for the holding of the ordinary general meeting. Proposed changes are to be made public before the holding of the general meeting already convened (art. 40.6 bis III RDL8/2020). 

Art.41.3 RDL 8/2020 imposes certain disclosure obligations on listed companies in case they implement the measures set in art. 40.6 bis."

Ignacio Moralejo

Coordinador de DADE

22nd April 2020