(1) Auditors and audit firms may be statutory auditors. Also, certified accountants and accountancy companies may serve as the statutory auditors of the annual financial statements and management reports of medium-sized limited liability companies (section 267 (2)) or of medium-sized commercial partnerships within the meaning of section 264a (1). The statutory auditors pursuant to sentences 1 and 2 must have available an excerpt from the professional register showing that the entry pursuant to section 38 number 1 (h) or number 2 (f) of the Act on the Profession of Auditors has been made; statutory auditors performing, for the first time, a statutory audit mandated by law pursuant to section 316 of the Commercial Code (Handelsgesetzbuch) must have available the excerpt from the professional register no later than six weeks after having accepted an audit engagement. The statutory auditors are under obligation to notify the company without undue delay of any cancellation of the entry made while the statutory audit is ongoing.
(2) An auditor or certified accountant is precluded from serving as statutory auditor if grounds are given, these being in particular relations of a business, financial or personal nature, in the course of the financial year as per the close of which the annual financial statements are being drawn up that are to be audited, or while the statutory audit is being performed, which give rise to the fear of bias.
(3) An auditor or a certified accountant will be precluded from performing a statutory audit in particular if the auditor or certified account or a person with whom the auditor or certified accountant jointly practices their profession
1. holds shares or has financial interests in the share capital company that is to be audited that are greater than negligible, or holds a participating interest in an enterprise that is affiliated with the share capital company to be audited or that owns more than twenty per cent of the shares therein;
2. is a statutory representative, member of the supervisory board or employee of the share capital company to be audited or of an enterprise that is affiliated with the share capital company to be audited or that owns more than twenty per cent of the shares therein;
3. has provided any of the following, above and beyond the audit activity, to the share capital company to be audited or on its behalf, in the course of the financial year to be audited or prior to the issuance of the audit report:
a) assistance with keeping the books or drawing up the annual financial statements to be audited,
b) assistance in performing internal audit tasks in a position of responsibility,
c) services in the context of managing the enterprise or financial services, or
d) independent actuarial or valuation services that have effects on the annual financial statements to be audited to a greater than negligible degree,
in each case provided that these activities are not immaterial; this will apply also if one of these activities was pursued for the share capital company to be audited in which the auditor or certified accountant is a statutory representative, employee, member of the supervisory board or a shareholder whose voting rights comprise more than twenty per cent of the voting rights to which shareholders are entitled;
4. employs a person in performing the audit who is not permitted to serve as statutory auditor pursuant to numbers 1 to 3;
5. has earned, in the course of the last five years, more than thirty per cent of the total revenue generated by their professional activities in each respective year from the share capital company to be audited and from enterprises in which the share capital company to be audited holds more than twenty per cent of the shares, and this is to be expected also for the current financial year; in order to prevent undue hardships from arising, the Chamber of Public Accountants many grant exemptions for a limited period of time.
This will apply also if the spouse or life partner meets one of the preclusion criteria pursuant to sentence 1 number 1, 2 or 3.
(4) Audit firms and accountancy companies are precluded from performing the statutory audit if they themselves, one of their legal representatives, a shareholder whose voting rights comprise more than twenty per cent of the voting rights to which shareholders are entitled, an affiliated enterprise, a shareholder employed for the audit in a position of responsibility or some other person they have employed who have the ability to influence the result of the audit are/is precluded pursuant to subsection (2) or (3). Sentence 1 will apply also if a member of the supervisory board is precluded pursuant to subsection (3) sentence 1 number 2 or if several shareholders whose voting rights, taken together, comprise more than twenty per cent of the voting rights to which shareholders are entitled, are precluded either each of them individually or collectively pursuant to subsection (2) or (3).
(5) Subsection (1) sentence 3 as well as subsections (2) to (4) are to be applied accordingly to the statutory auditor of the consolidated financial statements.