(1) The Federal Office of Justice will pursue proceedings for the imposition of coercive fines pursuant to subsections (2) to (6) against those members of the representative body of a share capital company who do not comply with
1. section 325 concerning the duty to disclose the annual financial statements, the management report, the consolidated financial statements, the consolidated management report and other accounting documents, or
2. section 325a concerning the duty to disclose the financial reporting documents of the main office;
in the case governed by number 2, the persons set out in section 13e (2) sentence 5 number 3 regarding whom an application for registration in the Commercial Register has been filed will take the stead, once they have been entered in the Commercial Register, of the members of the share capital company’s representative body. The proceedings for the imposition of coercive fines also may be pursued against the share capital company for which the members of the representative body are to fulfil the duties set out in sentence 1 nos. 1 and 2. The proceedings will not be contravened by the fact that a duty preceding the disclosure has not yet been fulfilled, in particular the duty to draw up the annual financial statements or consolidated financial statements or to award, without undue delay, the audit contract. The coercive fine amounts to a minimum of 2,500 euros and to a maximum of 25,000 euros. The coercive fines collected accrue to the Federal Office of Justice.
(1a) Where the share capital company is publicly traded within the meaning of section 264d, the coercive fine will be the highest of the following amounts:
1. 10 million euros,
2. 5 per cent of the annual aggregate turnover 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 failure to make the disclosure; the economic benefit comprises the profits obtained and losses avoided and may be determined by way of an estimate.
Where a member of the statutory representative body of the share capital company is warned that a coercive fine may be imposed, the maximum coercive fine will be, in derogation from sentence 1, the higher of the following amounts:
1. 2 million euros or
2. double the benefit derived from the failure to make the disclosure; the economic benefit comprises the profits obtained and losses avoided and may be determined by way of an estimate.
(1b) The aggregate turnover within the meaning of subsection (1a) sentence 1 number 2 is defined,
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, as the amount of the turnover as defined in section 277 (1) or the amount of the net turnover resulting from the application of 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, according to 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.
(1c) Insofar as the Federal Office of Justice is entitled to exercise discretion in determining the amount of the coercive fine, it is also to take into account any violations the affected person has committed earlier.
(1d) The Federal Office of Justice will notify the Federal Financial Supervisory Authority without undue delay of any coercive fine that is imposed pursuant to subsection (1) on a share capital company within the meaning of section 264d or on a member of its representative bodies. Where a complaint is lodged against such an imposition of a coercive fine, the Federal Office of Justice will notify the Federal Financial Supervisory Authority of this fact without undue delay, as well as of the outcome of the complaint proceedings.
(2) Subject to the stipulations of the subsections below, sections 15 to 19 (1) and (3), section 40 (1), section 388 (1), section 389 (3), section 390 (2) to (6) of the Act on Proceedings in Family Matters and in Matters of Non-contentious Jurisdiction (Gesetz über das Verfahren in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit) as well as, in all other regards, section 11 nos. 1 and 2, section 12 (1) nos. 1 to 3, (2) and (3), sections 14, 15, section 20 (1) and (3), section 21 (1), sections 23 and 26 of the Administrative Procedure Act (Verwaltungsverfahrensgesetz) are to be applied accordingly to the proceedings. The proceedings for the imposition of coercive fines are proceedings serving the administration of justice. The following are also authorised to represent the parties involved:
1. auditors and certified accountants,
2. tax advisors and agents in tax matters,
3. persons and associations within the meaning of sections 3a and 3c of the Tax Consultancy Act (Steuerberatungsgesetz), within the scope of their powers as defined in section 3a of the Tax Consultancy Act,
4. persons authorised to provide restricted commercial assistance in tax matters in accordance with sections 3d and 3e of the Tax Consultancy Act, within the scope of the powers defined therein, as well as
5. companies within the meaning of section 3 sentence 1 nos. 2 and 3 of the Tax Consultancy Act, who are acting through persons within the meaning of section 3 sentence 2 of the Tax Consultancy Act.
(2a) The files, including the case files, pertaining to compulsory enforcement are maintained electronically. Section 110c of the Act on Regulatory Offences is to be applied accordingly to the electronic maintenance of files and to electronic communications; however, sentence 1 of that stipulation of the law
1. does not apply, read in conjunction with sentence 2 of that provision and with section 32b of the Code of Criminal Procedure (Strafprozessordnung), to
a) a warning that a coercive fine may be imposed pursuant to subsection (3) sentence 1,
b) the decision as to costs pursuant to subsection (3) sentence 2, and
c) the issuance of interim orders;
2. does not apply, read in conjunction with sections 32d and 32e (3) sentences 1 and 2 of the Code of Criminal Procedure, to the overall proceedings, and furthermore
3. does not apply, nor do its sentences 2 and 3 apply, to the collection pursuant to the Act on the Recovery of Payments Owed to the Judiciary (Justizbeitreibungsgesetz).
Sentence 2 applies accordingly also to orders within the meaning of subsections (3) and (4) that may be issued using automated means.
(3) The parties involved designated in subsection (1) sentences 1 and 2 are to be instructed, with a warning being issued that non-compliance will entail a coercive fine in a specified amount, to comply with their statutory obligation within a time limit of six weeks following receipt of the warning, or to justify their failure to comply with it by filing an opposition against the order. Together with the warning issued to the parties involved regarding the imposition of a coercive fine, the costs of the proceedings are to be imposed on them. The opposition may be restricted such that solely objections against the decision as to costs may be raised. Lodging an opposition against the warning as to the coercive fine and against the decision as to costs will have no suspensive effect. Where the opposition results in the proceedings being discontinued, the decision as to costs pursuant to sentence 2 concurrently is to be set aside.
(4) If the parties involved fail to comply with the statutory duty no later than six weeks after having received the warning, or have not justified their failure to do so by means of lodging an opposition, then the coercive fine is to be imposed and, concurrently, the earlier order is to be repeated, with a warning being issued that a new coercive fine may be imposed. Where the parties involved have complied with their statutory duty only after the six-week time period has elapsed, the Federal Office of Justice is to reduce the coercive fine as follows:
1. to an amount of 500 euros if the parties involved have availed themselves of the rights enjoyed by a micro share capital company pursuant to section 326 (2);
2. to an amount of 1,000 euros if a small share capital company within the meaning of section 267 (1) is concerned;
3. to an amount of 2,500 euros if a warning has been issued regarding a higher coercive fine and the pre-requisites set out in nos. 1 and 2 have not been met, or
4. in each case to a lower amount if the parties involved only narrowly have missed the six-week deadline.
In performing such a reduction, only those circumstances are to be taken into account that have occurred prior to the decision taken by the Federal Office of Justice.
(5) Where the parties involved were prevented, through no fault of their own, to lodge the opposition within the six-week time period stipulated by subsection (4) or to comply with their statutory duty, the Federal Office of Justice is to grant, upon a corresponding request being filed, the restoration of the status quo ante. Any culpable act by a representative is attributable to the person represented. In the event of instructions on available legal remedies having been omitted or having been erroneous, a lack of culpability will be assumed. The request for restoration of the status quo ante is to be filed in writing with the Federal Office of Justice within two weeks of the impediment having ceased to exist. The facts serving as the reasons for the request are to be demonstrated to the satisfaction of the Federal Office of Justice at the time the request is made or in the proceedings regarding the request. The action that it was failed to take is to be taken subsequently, no later than six weeks after the impediment has ceased to exist. Where, in the course of one year after the six-week time period defined in subsection (4) has elapsed, neither a request for restoration of the status quo ante has been made nor the action that it was failed to take has been taken, a restoration of the status quo ante no longer can be granted. The restoration of the status quo ante is unappealable; section 335a (3) sentence 4 remains unaffected. Where the parties involved have not requested the restoration of the status quo ante or where the refusal of the request for restoration of the status quo ante has become finally binding, the parties involved no longer can invoke, by their complaint, their having been prevented through no fault of their own from lodging their opposition within the six-week time period or to comply with their statutory obligation.
(5a) (repealed)
(6) Where no indications are available to the Federal Office of Justice in proceedings pursuant to subsections (1) to (5) as concerns the allocation of a company to a size category within the meaning of section 267 (1) to (3) or of section 267a, it may instruct the parties involved designated in subsection (1) sentences 1 and 2 to state the balance sheet total, after deducting a deficit reported under assets (section 268 (3)), the turnover (section 277 (1)) and the number of employees (average for the year) (section 267 (5)) for the relevant financial year and for those financial years required to perform such an allocation to a size category. Where it is failed to provide the particulars set out in sentence 1, the operative assumption for the further proceedings will be that the eased requirements of sections 326 and 327 cannot be claimed. Sentences 1 and 2 apply accordingly to the consolidated financial statements and the consolidated management report, with the proviso that section 293 takes the place of sections 267, 326 and 327.
(7) By way of providing for the details of the electronic maintenance of files and of electronic communications pursuant to subsection (2a) in the version applicable from 1 January 2018 onwards, the Federal Ministry of Justice may determine the following by statutory instrument not requiring the approval by the Bundesrat:
1. allow those files to continue to be maintained in paper form that had already been created in paper form prior to the introduction of the electronic maintenance of files,
2. determine the organisational and technical framework conditions, the latter in keeping with the state of the art, for the electronic maintenance of files, including the requirements of data protection, data security and accessibility that are to be complied with,
3. determine in detail the standards applying to the transmission of electronic files between the Federal Office of Justice and another authority or a court,
4. establish the standards applying to the inspection of electronic files,
5. introduce electronic form sheets and
a) determine that the information included in the forms is to be transmitted, either in its entirety or in part, in structured, machine-readable form,
b) specify a communications platform on which the forms are to be made available on the Internet to allow them to be used
c) determine that an identification of the party using the form may be made, in derogation from subsection (2a) read in conjunction with section 110c of the Act on Regulatory Offences and section 32a (3) of the Code of Criminal Procedure by using the electronic proof of identity pursuant to section 18 of the Act on Identity Cards (Personalausweisgesetz), section 12 of the Act on the eID Card (eID-Karte-Gesetz) or section 78 (5) of the Residence Act (Aufenthaltsgesetz);
6. stipulate requirements as to form and further details for the automated issuance of decisions,
7. allow electronic documents to be submitted, in derogation from subsection (2a) read in conjunction with section 110c of the Act on Regulatory Offences and section 32a of the Code of Criminal Procedure, only from 1 January of the year 2019 or 2020 onwards, and
8. allow the files to continue to be maintained in the electronic form used thus far, up until a certain point in time prior to 1 January 2026.
The Federal Ministry of Justice may transfer to the Federal Office of Justice the powers set out in sentence 1, by statutory instrument not requiring the approval by the Bundesrat.