Draft Legislation - Spain
News on non-financial information and diversity
Royal Decree Law 18/2017
The Council of Ministers published at the end of November this Royal Decree Law transposing into Spanish law Directive 2014/95/EU, of 22nd October 2014, on the disclosure of non-financial and diversity information by certain large undertakings and groups.
The Decree will apply to limited companies, limited liability companies and limited partnership with a share capital, considered public interest enterprises with an average number of employees during the period higher than 500 and, at the same time, considered as “large” in the terms defined in the Directive 2013/34. The regulation exempts enterprises belonging to a group from this obligation if the enterprise and its subsidiaries are included in the consolidated management report of another enterprise. Small and medium enterprises are exempt from these information obligations.
The transposition of this directive entails the modification of the Commercial Code (CC), of the consolidated text of the Corporate Enterprises Act (TRLSC) and of the Accounts Auditing Act (LAC), to include the following changes:
Consolidated management report
Article 49.5 of the CC and article 262.5 of the TRLSC now contain the obligation incumbent on public interest companies to include a consolidated statement of non-financial information in their consolidated management report, as long as they meet these requirements:
a. An average number of group employees during the period higher than 500 that also meet
b. On the end of period date for two consecutive periods, at least two of the following categories:
- Consolidated total assets of over EUR 20 million
- Consolidated net annual business turnover higher than EUR 40 million
- Average number of employees during the period higher than 250
The institutions will be exempt from this obligation if they do not meet two of the requisites under section b) for two consecutive accounting periods, or if at the end of the period the institution has fewer than 500 employees.
The consolidated statement must contain such information as is necessary to make the group’s position clear on environmental and social issues, human resources policies, respect for human rights (gender equality, minorities, etc.) and the fight against corruption and bribery.
Specifically, this information statement must contain a description of the group’s business model and of the policies and procedures applicable as they relate to the issues listed above. It must contain indicators for these policies, the principal associated risks linked to the company’s activities, as well as key non-financial indicators regarding the business activity in question. Furthermore, this information must include supplementary references and explanations about the sums reported in the consolidated annual statements.
The obligation described above will be taken as met if the enterprises prepare their non-financial information statement separately from the management report, but attached to it as a reference and always subject to the same criteria as the management report in terms of how it is approved, filed and published.
Exceptionally, the rule allows information relating to imminent events or those being negotiated at the time to be omitted from the statement, provided there is a properly justified opinion by the members of the governing body that the publication of such information could entail a serious setback for the group’s commercial situation. In this case, the governing body should be cognizant of the event in question and of the reasons why the information has not been divulged.
With regard to the information that must be included in the management report about the structure of the company’s administration, in article 540 of the TRLSC, the Decree includes an additional regulatory requirement to describe the diversity policy used with regard to the governing body, in matters such as age, gender, disability, training and professional experience; as well as the measures adopted, and outcomes obtained, and the measures that, if applicable, the appointments committee would have taken.
Small and medium enterprises* will only be obliged to report on the measures adopted, if any, related to diversity policy.
Turning to the content of the auditors’ report, as outlined in article 35 of the LAC, the regulation states that in the case of consolidated account audits of public interest institutions, the auditor’s opinion about the consistency or otherwise between the management report and that period’s accounts will not be needed. The auditor needs only to check that the non-financial information statement is included in the management report or published separately from it.
Likewise, in the case of the audits of the consolidated accounts of companies that issue tradable securities on official secondary markets, the auditor needs only to check that the non-financial information statement is included in the annual corporate governance report attached to the management report.
Entry into force and application
The amendments brought in under the royal decree will come into force in the accounting periods that start on 1 January 2017, and the two periods that will be calculated will be fiscal 2016 and 2017.
* According to their definition in articles 3.9 and 3.10 in the Accounts Auditing Act