In accordance with what was mentioned in the previous paragraph, when we think of an accountant who acts simultaneously as the legal representative of the same company, we can say that there are conflicts of interest between the functions that would be performed in both roles. On the one hand, the legal representative, as a director of the company, is interested in increasing profitability and showing the good results of its management; in addition to the authority to make decisions regarding the use of resources and the execution of contracts. For the same reason, the law stipulates that it must react in cases where its action causes harm to the company or to third parties (see Article 200 of the Commercial Code). “In accordance with concept 200 of 4. October 2005 “this Council considers that, despite the above-mentioned provisions, there are fundamental problems in simultaneously occupying the positions of director and auditor of the same company; One of them refers to the moral and ethical obstacles to certification as an auditor, who, as a director and legal representative, approved and ordered the execution. This simultaneous action contradicts the cornerstones of the internal control system of organizations, which include the division of functions, double control, joint action. In other words, the accountant, as an employee of the company, is subject to the instructions given to him by the management of the company, while the auditor, as his name suggests, is an auditor of the administration and auditor of the work entrusted to the accountant. `The situation of the accounting officer differs from that of the auditor, since the former has, inter alia, the drawing up of the annual accounts of the company in which he holds that position, together with the directors, while the latter, in addition to the functions referred to in Article 207 of the Commercial Code, is intended to insure the owners of the company, to third parties and to the State itself, that the directors comply with the legal and statutory provisions relating to the security and preservation of corporate property and the conduct they must observe in order to ensure the fidelity of the diplomas. The person holding this post shall be appointed by the Assembly or the Council in accordance with the provisions of article 204 ibid.
Therefore, since there is no legal provision prohibiting an auditor from simultaneously acting as a representative and accountant in the same company, this law firm considers that it is possible to maintain dual quality as long as there are no functional confusions that create trauma for the company and third parties, and the company`s articles of association provide for something else in this regard. However, it should be noted that, taking into account the provisions of Law 43 already mentioned, the accountant is obliged to respect the fundamental principles of professional ethics when publicly confirming facts specific to the scope of his profession, so that, by not being able to distance himself from the conditions already mentioned, he can cause trauma to society. because certain principles of their professional practice, such as independence, impartiality, trust and confidentiality, could be compromised at any time.” When the financial statements are prepared, the legal representative, who in turn performs the functions of the accountant, can sign the diploma only with one of its characteristics, since it can only be preached that the diploma meets the certification requirement set out in the legal standards. On the other hand, the auditor must act in the public interest and prepare the accounting information according to the economic reality of the company. That is why it is said that it is a guarantor before the state of operations carried out by the organizations. However, there is no Law 43 of 1990 or a Commercial Code, an explicit rule prohibiting the same person from simultaneously holding the functions of accountant and legal representative of a company, i.e. there is no legal incapacity or incompatibility in this area, as if the commercial regulations did so with regard to the tax controller. if art. 205 HGB expressly prohibits a person from practising in a company with which he is affiliated and his subordinates, including other functions in those companies, with which they are related or by marriage or kinship, in the context of the fourth degree of kinship, first civilly or subsequently related, or shareholders of the directors and officers, the cashier, auditor or accountant of the same company, or those who work in the same company or in another subordinate position.
