The Statutory Auditor (Comisario)
Oversight of a stock corporation (S.A. or S.A.P.I.) is mandatory and rests with the Comisario (statutory auditor). Who can serve, who cannot, and what they review. The essentials for your annual meeting.
- In an S.A. and an S.A.P.I., oversight is mandatory and rests with one or more Statutory Auditors (Comisarios) (the S.A.S. is the exception).
- They are appointed by the Shareholders' Meeting and the role is revocable at any time.
- They do not manage: they oversee that the company's acts are lawful and that its financial information is truthful.
- The law bars certain people from serving as Comisario, to protect their independence.
What it is and what it's for
The Comisario is the S.A.'s oversight body. It is separate from and independent of the management body: it does not take part in day-to-day operations, but oversees management and verifies that the company's acts comply with the law and the bylaws. There may be one or several, and in practice they are usually accountants.
Unlike the S. de R.L., where oversight is optional, in an S.A. and an S.A.P.I. the Comisario is mandatory. Exception: the Simplified Stock Company (S.A.S.) is governed by its own chapter of the LGSM (arts. 267 to 273), which does not require an oversight body, so an S.A.S. may have no Comisario.
Who appoints them
They are appointed by the Shareholders' Meeting, and the role is revocable at any time. The Comisario may be a shareholder or an outsider, but cannot be a director or an employee of the company, precisely because they oversee those who manage it.
Who cannot serve as Comisario
The law (art. 165 of the LGSM) expressly bars from serving as Comisario:
- Anyone who, under the law, is barred from engaging in commerce.
- Employees of the company; employees of companies that hold more than 25% of the company's capital; and employees of companies in which the company holds more than 50%.
- Relatives of the directors: blood relatives in the direct line without limit of degree, collateral relatives up to the fourth degree, and relatives by affinity up to the second degree.
The purpose of these bars is independence: whoever oversees must not depend on, or be tied to, those who manage.
What they do
Their functions (art. 166 of the LGSM) include, among others:
- Oversee the company's operations without limit and at any time.
- Review operations, documentation, records and financial statements, and require from the directors the information they need.
- Deliver to the Meeting each year their report on the truthfulness, sufficiency and reasonableness of the information presented by the management body.
- Attend, with voice but no vote, the Board's sessions and the Meetings.
- Call meetings when the directors fail to do so, or whenever they deem it appropriate.
Their liability
The Comisario is liable for fulfilling the obligations that the law and the bylaws impose on them. They also answer for the directors' irregularities if, having become aware of them, they fail to record them or report them to the Meeting.
- At the annual ordinary meeting, the Meeting receives two reports: the management body's and the Comisario's.
- That's why the questionnaire asks who the Comisario is and whether they are ratified or replaced.
- If your S.A. or S.A.P.I. has no Comisario appointed, the meeting is the time to appoint one: it is mandatory (the S.A.S. is the exception and may have none).
This article is a general informational summary and is not legal advice for any specific case. For your particular situation, consult a Ramos Urías lawyer.