(1) Where there is cause to assume that
1. certain items have been understated to a greater than negligible degree in annual financial statements that have been approved and established (section 256 (5) sentence 3) or
2. the notes do not provide the required information, or not completely, and the management board has failed to provide the missing information at the general meeting in spite of a question having been asked in its regard, and a demand has been made to include the question in the minutes,
the court is to appoint special auditors upon a corresponding petition having been filed. The special auditors are to audit the items regarding which an objection has been raised with a view to ascertaining whether they have been understated to a greater than negligible degree. They are to audit the notes with a view to ascertaining whether the required information has not been provided, or not completely, and the management board has failed to provide the missing information at the general meeting in spite of a question having been asked in its regard, and a demand has been made to include the question in the minutes.
(1a) In the case of credit institutions, financial services providers or securities institutions, as well as in the case of capital management companies within the meaning of section 17 of the Investment Code, no special auditor may be appointed pursuant to subsection (1) insofar as the understatement or the lack of information in the notes is the result of section 340f of the Commercial Code having been applied.
(2) The petition must be filed within one month following the general meeting as to the annual financial statements. This applies also if the annual financial statements are to be audited anew pursuant to section 316 (3) of the Commercial Code. The petition may be filed solely by stockholders whose shares of stock, taken together, are at least equivalent to the threshold value set out in section 142 (2). The petitioners are to deposit the shares of stock until a decision is taken on their petition or they are to submit an assurance from the institute maintaining the securities account that until such decision, the shares of stock will not be disposed of, and they are to demonstrate to the satisfaction of the court that they have been the holders of the shares of stock for at least three months prior to the date of the general meeting. A statutory declaration in lieu of an oath made to a notary suffices as satisfactory demonstration.
(3) Prior to the appointment, the court is to hear the management board, the supervisory board and the statutory auditor. A complaint may be lodged against the decision taken. That regional court will take the decision on the petition pursuant to subsection (1) in the judicial district of which the company has its seat.
(4) Solely auditors and audit firms may be special auditors pursuant to subsection (1). Section 319 (2) to (4) and section 319b (1) of the Commercial Code apply accordingly to their selection and, in the case of companies that are public-interest entities as defined in section 316a sentence 2 of the Commercial Code, also Article 5 (1) of Regulation (EU) No. 537/2014. The auditor of the company’s annual financial statements and persons who served as the auditor of the company’s annual financial statements in the past three years prior to the appointment may not be special auditors pursuant to subsection (1).
(5) Section 142 (6) governing the reimbursement for reasonable cash expenditures and the remuneration of court-appointed special auditors, section 145 (1) to (3) governing the rights of the special auditors, section 146 governing the costs of special audits and section 323 of the Commercial Code governing the liability and responsibilities of the statutory auditor apply accordingly. The special auditors pursuant to subsection (1) have the rights pursuant to section 145 (2) also in relation to the auditor of the company’s annual financial statements.