The judge of the National Court Ismael Moreno has admitted aextension of the complaint against Abengoa and Deloitte for an alleged crime of investor scamin the case in which he investigates the alleged accounting alteration of the accounts of the Spanish multinational in the2014 to 2016 fiscal yearswith detrimental effects for its partners and shareholders.
In a car released on Monday, the head of the Central Court of Instruction number 2 admits the request made by the Abengoa Performed platform to extend the complaint against the two entities mentioned, as well as against the counselors and members of the Commission of Audit Mercedes Gracia and Alicia Velarde, and against the partner responsible for the audit Manuel Arranz, in these three cases both for the crime of investor scam and for accounting falsehood.
The complaint that gave rise to this procedure was admitted in February 2017 against former company president Felipe Benjumea and former CEO Manuel Sánchez Ortega. In it, the judge investigates whetheroptimal figures reflecting Abengoa’s financial statementsand its idyllic financial and financial situation disseminated by its administrators prior to its financial collapse (which in November 2015 led them to submit the pre-contest application)were or were not contrary to the financial and economic reality of the company.
In its prior notice on the admission of the complaint, the Prosecutor’s Office considered thatthere are enough indicationsas to consider in this state of the cause and without prejudice to further qualification, the possibleaccounting alterationwith detrimental effects for its partners, shareholders and third parties of the accounts corresponding to at least; the financial years 2014 to 2016 of the annual accounts of “Abengoa, S.A.” and certain subsidiaries (“ABENGOA SOLAR, S.A.” Y “ABENGOA BIOENERGÍA, S.A.”).
He added that “for this purpose, and despite the difficulties and obstacles that have been raised to collect the documentation that seems to point in the direction indicated,there are indicative data reflected in the expert report provided by the complainantof which the systematic concealment of substantial losses (impairments) of its assets is collated as well as the inclusion of certifications of works not sufficiently accredited that have determined a notable alteration of the real appearance of the entity’s economic-financial situation. “
The judge is based on the report provided by the Affected Platform prepared by the economist and auditor Juan José Silva Clemente which reflects the “systematic concealment of substantial losses (impairments) of assets, as well as the inclusion of certifications of works not sufficiently accredited that have determined a notable alteration of the real appearance of the economic-financial situation of the Abengoa entity “.
EquallyThe resolution of the ICAC (Accounting and Audit Institute) is includedof February 20, 2018 that sanctioned the auditor Deloite and her partner Manuel Arranz and that highlighted the existence of irregularities that unquestionably affected the faithful image that Abengoa transferred to the market in her accounts for the financial year 2014 “with the endorsement of the coquerellada Deloitte “.
The magistrate also refers to the reports provided by the State Advocate in an arbitration proceeding before the Arbitration Institute of the Stockholm Chamber of Commerce.
After examining the documents and the extension of the complaint, the magistrate considers that throughout the instruction “they have been ablecreate elements of judgment enough to consider in this state of the case and without prejudice to further qualification, the possible accounting alteration with detrimental effects for its partners, shareholders and / or third parties of the accounts corresponding, at least, to the 2014 to 2016 financial years of the annual accounts of Abengoa, S.A. and certain subsidiaries (ABENGOA SOLAR, S.A. and ABENGOA BIOENERGÍA, S.A.) “.
In line with the complainant, the judge argues thatThere is no lack of reasons in front of Abengoa, Deloitte and the three executivesas assumptions responsible for the serious alteration and alleged falsity of the economic-financial and patrimonial reality that was hidden from the thousands of investors who decided to invest their savings in the company.
This situation, according to Moreno, led to “rto present a reality diametrically different from the real one, to the point that where there were expectations of benefits and dividends there were indeed losses of such magnitude that it became unsustainable being forced to recognize its insolvency situation, from which it could only leave with withdrawals of up to 97 percent and waiting for ten years”.
The head of the Central Court of Instruction 2 also points out that, as evidenced by the complainant’s report, there are indications that the systematic concealment of substantial losses of its assets, as well as the inclusion of works certifications, can be collected not sufficiently accredited that they have determined a notable alteration of the real appearance of the entity’s economic-financial situation.
These facts, indicates the car, in this state of the proceedings, couldintegrate counterfeit crimes that reflect the economic situation of societyto the detriment of the same, its partners or third parties and crime of fraud of investors typified in articles 290 and 282 bis, respectively, of the Penal Code.
In relation to the crime of misrepresentation of accounts, the magistrate recalls that the law prevents imputing this crime to legal persons, and therefore attributes this criminal type only to the individuals involved.
The order agrees to practice a series of proceedings, including the statement of four witnesses, as well as the requirement to both Abengoa and Deloitte and KPMG for various documents.