(1) The shareholders of an enterprise elect the statutory auditor of the annual financial statements; the shareholders of the parent enterprise elect the statutory auditor of the consolidated financial statements. In the case of limited liability companies and of general partnerships and partly limited partnerships within the meaning of section 264a (1), the articles of association may determine otherwise. In each case, the statutory auditor is to be elected, as a rule, prior to expiry of that financial year that is covered by the scope of the audit activity. The legal representatives are to award the contract without undue delay following such election; where the supervisory board is competent, the supervisory board will do so. It is possible to withdraw from the audit contract only if another auditor has been appointed pursuant to subsection (3).
(1a) Any agreement restricting the choice pursuant to subsection (1) to particular categories or lists of auditors or audit firms is null and void.
(2) Unless some other auditor is appointed, that auditor is considered to have been appointed as the statutory auditor of the consolidated financial statements who has been engaged for the audit of the annual financial statements of the parent enterprise included in the consolidated financial statements. Where the consolidation is based on interim financial statements, then unless some other auditor is appointed, that auditor is considered to have been appointed as the statutory auditor who had been engaged for the audit of the annual financial statements of the parent enterprise drawn up before the most recent cut-off date for the consolidated financial statements.
(3) Upon a corresponding petition being filed by the legal representatives, by the supervisory board or by shareholders, whose shares collectively make up one twentieth of the voting rights or of the subscribed capital or have a market value of 500,000 euros at the time of the petition, the court is to appoint a different statutory auditor after hearing the parties involved and the auditor appointed if
1. this seems to be mandated by a reason given in the person of the auditor elected, in particular if one of the preclusion criteria pursuant to section 319 (2) to (5) or pursuant to section 319b is given or if Article 5 paragraph (4) subparagraph 1 sentence 1 or paragraph (5) subparagraph 2 sentence 2 of Regulation (EU) No 537/2014 has been violated, or if
2. the provisions governing the appointment of the auditor pursuant to Article 16 of Regulation (EU) No 537/2014 or the provisions governing the audit engagement pursuant to Article 17 of Regulation (EU) No 537/2014 have not been complied with.
The petition is to be filed within two weeks following the day of the statutory auditor’s election; stockholders may file such a petition only if they have raised their objection to the auditor’s election at the time the resolution was adopted. Where grounds for appointing a different statutory auditor than the auditor elected become known only after the auditor’s election, or where such grounds arise only after the auditor’s election, the petition is to be filed within two weeks following the day on which the party entitled to file the petition became aware of the circumstances giving rise to the petition, or ought to have become aware of them barring gross negligence. Where stockholders file the petition, they are to demonstrate to the satisfaction of the court that they have been holding the shares of stock for at least three months prior to the date on which the statutory auditor was elected. A declaration made in lieu of an oath before a notary will suffice for the purpose of such demonstration to the satisfaction of the court. Where the company is subject to supervision by the state, the supervisory authority also may file the petition. The petition no longer may be filed after the audit report has been submitted, and in the case of a supplementary audit pursuant to section 316 (3), it may no longer be filed once the audit report has been supplemented. A complaint may be lodged against the decision taken.
(4) Where, by the expiry of the financial year, no statutory auditor has been elected, the court is to appoint the statutory auditor upon a corresponding petition having been filed by the legal representatives, the supervisory board or by a shareholder. This also will apply if a statutory auditor who has been elected has refused to accept the audit engagement, has ceased to be available or is prevented from concluding the audit in due time and no other statutory auditor has been elected. The legal representatives are under obligation to file the petition. A complaint may be lodged against the decision taken by the court; the appointment of the statutory auditor is incontestable.
(5) The court-appointed statutory auditor is entitled to claim reimbursement of their reasonable cash expenses and to remuneration for their activity. The court determines the expenses and the remuneration. A complaint may be lodged against the decision taken by the court; a complaint on points of law is precluded. Once the court’s decision has become final and unappealable, compulsory enforcement under the Code of Civil Procedure is the available remedy.
(6) Once a statutory auditor has accepted an audit engagement, the statutory auditor may terminate it solely for grave cause. Grave cause will not be deemed given in the case of differences of opinion regarding the content of the audit report, as well as regarding the issuance of a qualified or adverse opinion. The reasons for the termination are to be stated in writing. The statutory auditor is to report on the result of their audit up until that point; section 321 applies accordingly.
(7) Where the statutory auditor terminates the audit contract pursuant to subsection (6), the legal representatives are to notify the supervisory board, the next upcoming general meeting or, in the case of limited liability companies, the shareholders of this fact. The legal representatives are to submit the report of the statutory auditor thus far mandated to the supervisory board and are to do so without undue delay. Each of the supervisory board members is entitled to obtain knowledge of the report. The report is to be handed over to each member of the supervisory board or, insofar as the supervisory board has so resolved, to the members of a committee. Where the supervisory board has engaged the statutory auditor, the duties of the legal representatives will be incumbent on the supervisory board, including the duty to notify the legal representatives.
(8) The statutory auditor and the legal representatives of the audited company are to notify the Chamber of Public Accountants without undue delay and in writing of the fact that the audit contract has been terminated or revoked, stating the reasons therefor.