(1) In the course of the first five months of the financial year of the group, the legal representatives of a share capital company (parent enterprise) having its seat within Germany are to draw up consolidated financial statements and a consolidated management report for the past financial year of the group, if such parent enterprise has the ability to directly or indirectly exercise a dominant influence on some other enterprise (subsidiary enterprise). Where the parent enterprise is a share capital company within the meaning of section 325 (4) sentence 1 the consolidated financial statements as well as the consolidated management report for the past financial year of the group are to be drawn up in the course of the first four months of the financial year of the group.
(2) A parent enterprise will be considered to have dominant influence in all cases in which
1. it is entitled to the majority of the shareholder voting rights in another enterprise;
2. it is entitled to the right to appoint or remove from office, within another enterprise, the majority of the members of the administrative, managerial or supervisory body determining the financial and operating policies, while concurrently being a shareholder in said enterprise;
3. it is entitled to the right to determine the financial and operating policies pursuant to a control agreement concluded with another enterprise or pursuant to a provision made in the statutes of the other enterprise, or
4. the majority of the risks and rewards, in economic terms, of an enterprise that serves to achieve a narrowly delimited and precisely defined objective pursued by the parent enterprise (special purpose entity) rests with the parent enterprise. Besides being structured as an enterprise, special purpose entities may also consist of other legal persons governed by private law or legally dependent separate investment funds governed by private law, to the exception of domestic, open-ended specialised AIFs with fixed investment terms launched as separate investment funds within the meaning of section 284 of the Investment Code or comparable EU investment funds or foreign investment funds that are comparable to the domestic, open-ended specialised AIFs with fixed investment terms launched as separate investment funds within the meaning of section 284 of the Investment Code, or domestic, closed specialised AIFs launched as separate investment funds or EU investment funds or foreign investment funds comparable to the domestic, closed specialised AIFs launched as separate investment funds.
(3) The rights to which some other subsidiary enterprise is entitled, as well as the rights to which the persons acting for the account of the parent enterprise or for the account of subsidiary enterprises are entitled, also are considered rights to which a parent enterprise is entitled pursuant to subsection (2). Those rights are counted among the rights to which a parent enterprise is entitled in some other enterprise that the parent enterprise itself or one of its subsidiary enterprises may exercise based on an agreement concluded with other shareholders of said enterprise. Those rights are not to be counted among such rights that
1. are tied to shares held by the parent enterprise or by its subsidiary enterprises for the account of some other person, or that
2. are tied to shares held as collateral, if these rights are exercised according to the guarantor’s instructions or, in cases in which a credit institution holds the shares as collateral for a loan, if these rights are exercised in the interests of the guarantor.
(4) The question of to which part of the voting rights an enterprise is entitled is determined, for purposes of calculating the majority pursuant to subsection (2) no. 1, by the ratio between the number of voting rights that the enterprise may exercise based on the shares belonging to it, and the total number of all voting rights. Those voting rights are to be deducted from the total number of all voting rights that are based on own shares belonging to the subsidiary enterprise itself, one of its subsidiary enterprises or to some other person for the account of these enterprises.
(5) A parent enterprise will be released from the duty to draw up consolidated financial statements and a consolidated management report if the only subsidiary enterprises it has are ones it is not required to include in the consolidated financial statements pursuant to section 296.