(1) Whoever, acting in the capacity of a member of the representative body or of the supervisory board of a share capital company, acts in contravention,
1. in drawing up or adopting the annual financial statements, of a stipulation made in
a) section 243 (1) or (2), sections 244, 245, 246, 247, 248, 249 (1) sentence 1 or (2), in section 250 (1) or (2), in section 251 or in section 264 (1a) or (2) concerning the form or content,
b) section 253 (1) sentence 1, 2, 3, 4, 5 or 6, (2) sentence 1, also read in conjunction with sentence 2, (3) sentence 1, 2, 3, 4 or 5, (4) or (5), in section 254 or in section 256a concerning the valuation,
c) section 265 (2), (3), (4) or (6), in sections 266, 268 (3), (4), (5), (6) or (7), in sections 272, 274, 275 or in section 277 concerning the classifications or
d) section 284 or in section 285 concerning the information to be provided on the balance sheet, at the foot of the balance sheet or in the notes,
2. in drawing up the consolidated financial statements, of a stipulation made in
a) section 294 (1) concerning the scope of consolidation,
b) section 297 (1a), (2) or (3) or in section 298 (1) read in conjunction with sections 244, 245, 246, 247, 248, 249 (1) sentence 1 or (2), with section 250 (1) or with section 251 concerning the form or content,
c) section 300 concerning the consolidation principles or the requirement to provide full and complete information,
d) section 308 (1) sentence 1, read in conjunction with the provisions designated in number 1 (b), in section 308 (2) or section 308a concerning the valuation,
e) section 311 (1) sentence 1, read in conjunction with section 312 concerning the treatment of associated enterprises or
f) section 308 (1) sentence 3, in section 313 or in section 314 concerning the information to be provided in the notes to the consolidated financial statements,
3. in drawing up the management report or in preparing a separate non-financial report, of a stipulation made in sections 289 to 289b (1), sections 289c, 289d, 289e (2), also read in conjunction with section 289b (2) or (3), or section 289f concerning the content of the management report or of the separate non-financial report,
3a. in preparing a corporate governance statement, of a stipulation made in section 289f (4) sentence 3 read in conjunction with sentence 1 and subsection (2) no. 4 concerning the content,
4. in drawing up the consolidated management report or in preparing a separate, consolidated non-financial report, of a stipulation made in sections 315 to 315b (1), or section 315c, also read in conjunction with section 315b (2) or (3) or section 315d concerning the content of the consolidated management report or of the separate, consolidated non-financial report,
5. or, as a person set out in section 13e (2) sentence 5 number 3 of a share capital company, regarding which person an application for registration in the Commercial Register has been filed, of a stipulation made in section 328, also read in conjunction with section 325a (1) sentence 1 first half-sentence, concerning the form, format or content of a disclosure, lodgment, publication or reproduction, or
6. of a statutory instrument issued on the basis of section 330 (1) sentence 1, insofar as this statutory instrument refers, with regard to certain elements constituting an offence, to the provision as to administrative fines,
will be deemed to have committed a regulatory offence. In the cases governed by sentence 1 nos. 3 and 3a, the contravention of a stipulation made in section 289f (2) no. 4, also read in conjunction with subsections (3) or (4), will not be excluded by the failure to cite, whether as a whole or in part, the stipulations or reasoning in accordance with section 76 (4) or section 111 (5) of the Stock Corporation Act or in accordance with section 36 or section 52 (2) of the Limited Liability Companies Act (Gesetz betreffend die Gesellschaften mit beschränkter Haftung). In the cases governed by sentence 1 no. 4, the contravention of a stipulation made in section 315d read in conjunction with section 289f (2) no. 4 will not be excluded by the failure to cite, whether as a whole or in part, the stipulations or reasoning in accordance with section 76 (4) or section 111 (5) of the Stock Corporation Act.
(2) A person who issues an audit report pursuant to section 322 (1) relating to the financial statements
1. of a share capital company that is a public-interest entity as defined in section 316a sentence 2 no. 1, or
2. of a share capital company not set out in no. 1,
despite the fact that this person may not serve as the statutory auditor as stipulated by section 319 (2) or (3), in each case also read in conjunction with subsection (5), or as stipulated by section 319b (1) sentence 1 or 2, in each case also read in conjunction with subsection (2), or of the fact that the audit firm or the accountancy company for whom the person is pursuing their activities may not serve as the statutory auditor as stipulated by section 319 (4) sentence 1 or 2, in each case also read in conjunction with subsection (5), or as stipulated by section 319b (1) sentence 1 or 2, in each case also read in conjunction with subsection (2), will be deemed to have committed a regulatory offence. Likewise, whoever issues an audit report pursuant to section 322 (1) relating to the financial statements of a share capital company that is a public-interest entity as defined in section 316a sentence 2 no. 1 despite the fact
1. that this person or the audit firm for whom the person is pursuing their activities, or a member of the network to which the person or the audit firm for whom the person is pursuing their activities belongs, acts in contravention of a provision stipulated by Article 5 paragraph (4) subparagraph 1 sentence 1 or paragraph (5) subparagraph 2 sentence 2 of Regulation (EU) No 537/2014 of the European Parliament and of the Council of 16 April 2014 on specific requirements regarding statutory audit of public-interest entities and repealing Commission Decision 2005/909/EC (OJ L 158 of 27 May 2014, p. 77, L 170 of 11 June 2014, p. 66), or
2. that this person or the audit firm for whom the person is pursuing their activities may not perform the audit pursuant to Article 17 paragraph (3) of Regulation (EU) No 537/2014,
will be deemed to have committed a regulatory offence. Financial statements within the meaning of sentences 1 and 2 are annual financial statements, standalone financial statements pursuant to section 325 (2a) or consolidated financial statements that are to be audited based on statutory requirements.
(2a) Whoever, acting in the capacity of a member of a share capital company’s audit committee instituted pursuant to section 324 (1) sentence 1
1. fails to monitor the independence of the statutory auditor or of the audit firm in the manner stipulated by Article 4 paragraph (3) subparagraph 2, by Article 5 paragraph (4) subparagraph 1 sentence 1 or by Article 6 paragraph (2) of Regulation (EU) No 537/2014,
2. submits a recommendation for the appointment of a statutory auditor or of an audit firm that does not comply with the requirements set out in Article 16 (2) subparagraph 2 or 3 of Regulation (EU) No 537/2014 or that has not been preceded by a selection procedure pursuant to Article 16 (3) subparagraph 1 of Regulation (EU) No 537/2014, or
3. submits to the shareholders a proposal for the appointment of a statutory auditor or an audit firm who does not comply with the requirements set out in Article 16 (5) subparagraph 1 of Regulation (EU) No 537/2014,
will be deemed to have committed a regulatory offence.
(3) In the cases governed by subsection (2) sentence 1 no. 1 and sentence 2, as well as in the cases governed by subsection (2a), the regulatory offence is punishable by a fine of up to 500,000 euros; in the cases governed by subsection (1) and subsection (2) sentence 1 no. 2, by a fine not exceeding 50,000 euros. Where the share capital company is publicly traded within the meaning of section 264d, the maximum fine will be, in the cases governed by subsection (1), the higher of the following amounts:
1. 2 million euros or
2. double the economic benefit derived from the regulatory offence, in which context the economic benefit comprises the profits obtained and losses avoided and may be determined by way of an estimate.
(3a) Where, in the cases governed by subsection (1), a fine is levied pursuant to section 30 of the Act on Regulatory Offences (Gesetz über Ordnungswidrigkeiten) against a publicly traded share capital company within the meaning of section 264d, the maximum fine will be the highest of the following amounts:
1. 10 million euros,
2. 5 per cent of the aggregate turnover for the year that the share capital company has achieved in the financial year preceding the ruling issued by the authority or
3. double the economic benefit derived from the regulatory offence, in which context the economic benefit comprises the profits obtained and losses avoided and may be determined by way of an estimate.
In the cases governed by subsection (3) sentence 1 read in conjunction with subsection (2) sentence 1 no. 1 or sentence 2, section 30 (2) sentence 3 of the Act on Regulatory Offences is to be applied.
(3b) The aggregate turnover within the meaning of subsection (3a) sentence 1 no. 2 is,
1. in the case of share capital companies that draw up their annual financial statements in accordance with the provisions of commercial law or according to the laws of another Member State of the European Union or of some other state party to the Agreement creating the European Economic Area in conformity with Directive 2013/34/EU, the amount of the turnover as defined in section 277 (1) or the amount of the net turnover in accordance with the domestic laws applicable to the company in conformity with Article 2 number 5 of Directive 2013/34/EU,
2. in all cases not set out in number 1, the amount of the turnover resulting from the application of those accounting standards that, under the relevant domestic laws, govern the drawing-up of the annual financial statements of the share capital company.
Where the share capital company is a parent enterprise or a subsidiary enterprise within the meaning of section 290, the aggregate turnover reported in the consolidated financial statements of the parent enterprise, drawn up for the largest body of enterprises, will be taken as the basis instead of the aggregate turnover of the share capital company. Where no annual financial statements or consolidated financial statements are available for the relevant financial year, the annual financial statements or consolidated financial statements for the immediately preceding financial year will be taken as the basis; where no such financial statements are available, either, the aggregate turnover may be determined by way of an estimate.
(4) The administrative authority within the meaning of section 36 (1) no. 1 of the Act on Regulatory Offences is:
1. in the cases governed by subsection (1), the Federal Financial Supervisory Authority for share capital companies that are publicly traded within the meaning of section 264d or that are institutions according to section 37 (1) sentence 1 of the Act on the Supervision of Markets in Crypto-Assets (Kryptomärkteaufsichtsgesetz – KMAG),
2. the Federal Office of Justice
a) in those cases governed by subsection (1) in which the Federal Financial Supervisory Authority is not the administrative authority in accordance with no. 1, and
b) in the cases governed by subsection (2a),
3. in the cases governed by subsection (2), the Auditor Oversight Body with the Federal Office for Economic Affairs and Export Control.
(5) Subsections (1) to (4) are not to be applied to:
1. credit institutions within the meaning of section 340 (1) sentence 1;
2. financial services institutions within the meaning of section 340 (4) sentence 1;
3. securities institutions within the meaning of section 340 (4a) sentence 1;
4. institutions within the meaning of section 1 (3) of the Payment Services Oversight Act;
5. insurance enterprises within the meaning of section 341 (1); and
6. pension funds within the meaning of section 341 (4) sentence 1.