(1) Share capital companies that are public-interest entities (section 316a sentence 2) and that have no supervisory board or administrative body that must meet the pre-requisites set out in section 100 (5) of the Stock Corporation Act are under obligation to institute an audit committee in accordance with subsection (2), the remit of which in particular includes the tasks described in section 107 (3) sentences 2 and 3 of the Stock Corporation Act. This does not apply to share capital companies within the meaning of sentence 1
1. the exclusive purpose of which consists of the issuance of securities within the meaning of section 2 (1) of the Securities Trading Act that are securitised by assets;
2. that are credit institutions within the meaning of section 340 (1) and that are taking recourse to an organised market within the meaning of section 2 (11) of the Securities Trading Act solely by way of issuing debt instruments within the meaning of section 2 (1) no. 3 (a) of the Securities Trading Act, if their nominal value is not greater than100 million euros and insofar as there is no obligation to publish a prospectus pursuant to the Regulation (EU) 2017/1129 of the European Parliament and of the Council of 14 June 2017 on the prospectus to be published when securities are offered to the public or admitted to trading on a regulated market, and repealing Directive 2003/71/EC (OJ L 168 of 30 June 2017, p. 12), last amended by Regulation (EU) 2019/2146 (OJ L 325 of 16 December 2019, p. 43);
3. that are investment funds within the meaning of section 1 (1) of the Investment Code.
In the case governed by sentence 2 no. 1, the notes are to present why an audit committee is not being instituted.
(2) The members of the audit committee are to be elected by the shareholders. The majority of the members, among them the chairperson, must be independent; in all other cases, section 100 (5) of the Stock Corporation Act is to be applied accordingly. The chairperson of the audit committee may not be tasked with managing the enterprise’s affairs. Section 107 (3) sentence 8, section 124 (3) sentence 2 and section 171 (1) sentences 2 and 3 of the Stock Corporation Act apply accordingly. The audit committee is to submit to the shareholders a proposal for the election of the statutory auditor if the share capital company does not have a supervisory board or administrative body or if it is not incumbent on the supervisory board or administrative body to make such a proposal.
(3) The Auditor Oversight Body with the Federal Office for Economic Affairs and Export Control may demand, in order to fulfil its tasks pursuant to Article 27 (1) (c) of Regulation (EU) No 537/2014, that a share capital company that is a public-interest entity (section 316a sentence 2) present and explain the result as well as the pursuit of the activities by its audit committee. As a rule, the Auditor Oversight Body initially is to take recourse to publicly accessible sources.