(1) Besides being null and void in the cases governed by section 173 (3), section 234 (3) and section 235 (2), annual financial statements as approved and established will be null and void if:
1. they violate, by their content, provisions that exclusively or primarily were instituted for the protection of the company’s creditors,
2. in the case of a statutory duty to have an audit performed, they have not been audited pursuant to section 316 (1) and (3) of the Commercial Code;
3. in the case of a statutory duty to have an audit performed, they have been audited by persons who, pursuant to section 319 (1) of the Commercial Code or pursuant to Article 25 of the Introductory Act of the Commercial Code (EGHGB), are not statutory auditors or who have not been appointed as statutory auditors for other reasons than the following:
a) violation of section 319 (2), (3) or (4) of the Commercial Code,
b) violation of section 319b (1) of the Commercial Code,
c) violation of Regulation (EU) No. 537/2014 of the European Parliament and of the Council of 16 April 2014 on specific requirements regarding statutory audit of public-interest entities and repealing Commission Decision 2005/909/EC (OJ L 158 of 27 May 2014, p. 77, L 170 of 11 June 2014, p. 66),
4. at their approval, the provisions of the law or of the by-laws regarding the allocation of amounts to the capital reserve or the retained earnings or regarding the withdrawal of amounts from the capital reserve or the retained earnings have been violated.
(2) Besides being null and void in the cases set out in subsection (1), annual financial statements approved and established by the management board and the supervisory board will be null and void only if the management board or the supervisory board did not duly and properly cooperate in and assist with their approval and establishment.
(3) Besides being null and void in the cases set out in subsection (1), annual financial statements approved and established by the general meeting will be null and void only if the approval
1. was resolved upon at a general meeting that was convened such that section 121 (2) and (3) sentence 1 or (4) was violated,
2. was not recorded by a notary pursuant to section 130 (1) and (2) sentence 1 and (4),
3. has been finally and conclusively declared null and void by a judgment handed down upon an action for avoidance having been brought.
(4) The annual financial statements will be null and void for a violation of the provisions governing the layout of the annual financial statements as well as for the non-compliance with forms according to which the annual financial statements are to be laid out only if this has substantially impaired their clarity and structure.
(5) The annual financial statements will be null and void for a violation of the valuation rules only if
1. items have been overstated or
2. items have been understated so that the assets and the revenue situation of the company have been intentionally depicted inaccurately or have been concealed.
Assets items are overstated if they have been stated at a higher value than that permissible pursuant to sections 253 to 256a of the Commercial Code, while liabilities items are overstated if they have been stated at a lower amount than that permissible pursuant to said provisions. Assets items are understated if they have been stated at a lower value than that permissible pursuant to sections 253 to 256a of the Commercial Code, while liabilities items are understated if they have been recognised at a higher amount than that permissible pursuant to said provisions. In the case of credit institutions, financial services providers or securities institutions, well as in the case of capital management companies within the meaning of section 17 of the Investment Code, no violation of the valuation rules will be given insofar as the deviation is permissible in accordance with the provisions applying to them, in particular pursuant to sections 340e to 340g of the Commercial Code; this applies accordingly to insurance companies subject to the provisions applying to them, particularly sections 341b to 341h of the Commercial Code.
(6) Asserting nullity under subsection (1) nos. 1, 3 and 4, (2), (3) nos. 1 and 2, (4) and (5) is no longer possible once six months have lapsed since entry of the annual financial statements in the business register in the cases governed by subsection (1) nos. 3 and 4, (2) and (3) nos. 1 and 2, in the other cases, once three years have lapsed. Where, at the time the time limit expires, an action for a declaratory judgment as to the nullity of the annual financial statements is pending, the time limit is extended until that point in time at which the final and binding decision has been taken regarding that action or it has been conclusively dealt with and terminated in some other way.
(7) Section 249 applies accordingly to the action brought against the company for a declaratory judgment as to nullity. Where the Federal Republic of Germany is the home country (section 2 (13) of the Securities Trading Act) for the company as issuer of securities within the meaning of section 2 (1) of the Securities Trading Act that are admitted to official listing, to the exception of shares and shares of stock in open investment funds within the meaning of section 1 (4) of the Investment Code, the court is to inform the Federal Financial Supervisory Authority (BAFin) of any action brought with it seeking a declaratory judgment as to nullity; the court likewise is to inform BAFin of any final and binding decision handed down with regard to such action.