You own 5% of a company and they hide the accounts: how to force an audit at the company's expense

Article 265.2 LSC establishes that, in companies not obliged to submit their annual accounts for verification by an auditor, shareholders representing at least 5% of the share capital can request the commercial registrar of the registered office to appoint an auditor, at the company's expense, to review the annual accounts for a specific financial year.

This is not a courtesy request, it is a right. The registrar does not assess whether your suspicions are founded or if the relationship with the director is broken. They check 3 things: that you represent 5%, that the company is not obliged to be audited and that the application is submitted on time. Article 359 of the Reglamento del Registro Mercantil (the Spanish Commercial Registry Regulations) includes these same 2 requirements of percentage and deadline.

Neither you nor the company chooses the auditor. They come from the roster in article 355 RRM: every January the Instituto de Contabilidad y Auditoría de Cuentas sends the Central Commercial Registry the list of registered auditors by district, a public draw is held and the letter of the alphabet drawn determines the order of appointments. That randomness is exactly what makes the report credible.

This is the point that leaves out most minority shareholders. Article 265.2 LSC requires that "3 months have not elapsed since the closing date of said financial year". With a calendar year, closed on 31 December, the last day to submit is 31 March.

The Dirección General de Seguridad Jurídica y Fe Pública states it the same way: shareholders must submit their application within 3 months following the close of the financial year (Resolution of 7 October 2025, published in the BOE on 21 January 2026). What counts is the date of the presentation entry in the Registry, not the date you signed the document or the date you complained to the director.

Look at the calendar and you will understand the trap. Directors have 3 months from the closing date to formulate the accounts (art. 253.1 LSC) and 6 months to hold the ordinary general meeting that approves them (art. 164.1 LSC). Your window closes on the exact same day they finish formulating, and well before they summon you to the meeting. If you wait to see the accounts to react, you are late. The auditor is requested before, not after.

The deadline is a strict expiry period. It is not interrupted by sending burofaxes to the director, nor by requesting information in writing, nor by challenging agreements. It only stops by submitting the application to the Commercial Registry.

Article 265.2 LSC orders the appointment of the auditor "at the company's expense". The fees are borne by the company, not the shareholder who requested the review. That is the difference that makes this right truly usable: you do not finance the examination of accounting you do not control.

The amount is also not agreed upon by the company with the auditor behind your back. When making the appointment, the registrar sets the auditor's remuneration for the entire period or, at least, the criteria to calculate it (art. 362.1 RRM and art. 267.3 LSC). The auditor can request a deposit or provision of funds on account of their fees before starting (art. 267.3 LSC), but they ask the audited company for it.

The only thing you advance is the registry provision of funds that accompanies the application, on account of the registry tariff. Each Commercial Registry publishes its amount and requires attaching the bank receipt to the application: the Commercial Registry of Valencia, for example, sets it at €250 for expert and auditor requests. Check the amount of the competent registry, and the cost of our management in the procedure details.

The application is submitted in triplicate addressed to the commercial registrar of the registered office, with 4 mandatory details (art. 351.1 RRM): name, surnames and address of the applicant indicating their status as a shareholder; name and registry identification data of the company to be audited, with its address; reason for the request; and date. The documentation proving your standing is attached (art. 351.2 RRM).

In the reason, it is advisable to expressly state that the company is not obliged to verify its accounts and the specific financial year to be audited. This is the point where most applications fail due to poor drafting. We prepare the application and the complete file, and we tell you which document works in your case to prove the 5%.

Once the application is submitted, a presentation entry is made in the Journal and a numbered file is opened (art. 353 RRM). Within the following 5 days, the registrar forwards a copy of the application and the attached documents to the company, by a means that records the date of receipt (art. 354.1 RRM).

The company then has 5 days to oppose, and only for 2 reasons: providing documentary proof that the appointment is not appropriate, or denying the applicant's standing (art. 354.2 RRM). If there is opposition, the registrar resolves within the following 5 days, and an appeal against that resolution can be filed with the Directorate General within 15 days. If there is no opposition, or when the registrar's resolution is final, the appointment proceeds (art. 354.4 RRM).

The most used defence, and the one that wins most often, is for the company to appoint a voluntary auditor. Registry doctrine, confirmed by the Supreme Court ruling of 9 March 2007, understands that what article 265.2 LSC protects is not that a specific professional audits, but that the audit is actually done and that the shareholder can know the accounting. If the company appoints an auditor on its own, the shareholder's protectable interest is covered.

However, that defence requires 2 cumulative conditions: that the voluntary appointment at the company's request is proven, and that the shareholder's right to the audit report is guaranteed, which is only achieved by registering the appointment, delivering the report to them or incorporating it into the file (Resolution of the Dirección General de Seguridad Jurídica y Fe Pública of 7 October 2025). A voluntary appointment that does not reach the shareholder's hands invalidates nothing.

Pay attention to the date, because the criteria have changed. The old doctrine required the voluntary appointment to be reliably prior to the minority shareholder's request. Recent doctrine has lowered that requirement to make it irrelevant if the joint assessment of the documentation proves the voluntary appointment (Resolutions of 1 June 2020 and 18 and 30 April 2024, cited in the one of 7 October 2025). Translated: submitting first no longer guarantees that the roster auditor will audit, but it is still the only way for the audit to end up existing.

The other 2 defences are easier to dismantle. Denying that you have 5% is answered with the correct document. And arguing that the company is indeed obliged to be audited does not close the door on you: it means your route is not 265.2 but 265.1 LSC, which allows any shareholder to request the appointment when the general meeting failed to appoint an auditor when it should have, and which has no 3-month window.

Past 31 March, article 265.2 LSC is no longer useful to you for that financial year. Article 40 of the Código de Comercio (the Spanish Commercial Code) remains: every entrepreneur is obliged to submit their annual accounts to an audit when agreed by the commercial registrar of the registered office, if they accept the founded request of someone proving a legitimate interest. There is no 3-month window.

The price of that second door is literally money. Before upholding the request, the registrar will require the petitioner to advance the necessary funds to pay the auditor's remuneration (art. 40.1 CCom). And the final distribution depends on the report's result: if it contains a denied or unfavourable opinion, the registrar agrees that the company returns the advanced amounts to you; if it contains reservations or qualifications, a resolution is issued distributing the cost; and if the report is favourable, the audit cost is entirely the applicant's (art. 40.2 CCom).

Furthermore, the request is dismissed if before its date the appointment of an auditor to verify the accounts of that same financial year was already registered in the Commercial Registry (art. 40.3 CCom). That is why the 3-month window is not an administrative formality: it is the difference between auditing for free and auditing betting your own money.

The most powerful effect is not reading the report, it is the blockage. Once the audit is agreed upon at the minority's request, the directors cannot deposit the annual accounts without attaching the auditor's report (art. 279.1 LSC). And if they do not deposit, the Commercial Registry closes the company's sheet: no document referring to it is registered while the breach persists, except for dismissals and resignations, revocation and renunciation of powers, dissolution and appointment of liquidators, and entries ordered by judicial or administrative authority (art. 282 LSC).

The auditor has a minimum of 1 month from when they are given the accounts signed by the directors to present their report (art. 270.1 LSC). Once issued, they deliver the original to the audited company. And if they have not been able to carry out the audit for reasons not attributable to them, they issue a report with a denied opinion due to an absolute limitation in the scope of their work and deliver the original to the applicant, sending a copy to the company (art. 361 RRM). That denied opinion, by itself, is already a valuable piece of data.

The audit has limits that you should know: it is limited to the annual accounts and the management report of the last financial year (art. 360 RRM). It is not a general investigation into the company nor an expert appraisal of the director's management.

And it does not replace your other information rights, it adds to them. In a limited liability company, from the calling of the general meeting, the shareholder or shareholders representing at least 5% of the capital can examine at the registered office, by themselves or accompanied by an accounting expert, the documents that serve as support and background for the annual accounts, unless otherwise provided in the bylaws. The law itself clarifies that this examination does not prevent or limit the minority's right to have an auditor appointed at the company's expense (art. 272.3 LSC).