(1) Whoever, acting in the capacity of senior manager within the meaning of section 1 (2) or of section 53 (2) no. 1 of the Banking Act, of a credit institution or of a financial services institution within the meaning of section 340 (4) sentence 1, or in the capacity of senior manager within the meaning of section 2 (36) of the Securities Institutions Act of a securities institution within the meaning of section 340 (4a) sentence 1, or acting in the capacity of senior manager within the meaning of section 1 (8) sentences 1 and 2 of the Payment Services Oversight Act of an institution within the meaning of section 1 (3) of the Payment Services Oversight Act or as the owner of a financial services institution within the meaning of section 340 (4) sentence 1 operated in the legal form of sole trader or of a securities institution within the meaning of section 340 (4a) sentence 1, or acting in the capacity of member of the supervisory board of one of the enterprises referenced above, acts in contravention,
1. in drawing up or adopting the annual financial statements or in drawing up the interim financial statements pursuant to section 340a (3), of a stipulation made in
a) section 243 (1) or (2), sections 244, 245, 246 (1) or (2), the latter section read in conjunction with section 340a (2) sentence 3, in section 246 (3) sentence 1, in section 247 (2) or (3), in sections 248, 249 (1) sentence 1 or (2), in section 250 (1) or (2), in section 264 (1a) or (2), in section 340b (4) or (5) or in section 340c (1) concerning the form or content,
b) section 253 (1) sentence 1, 2, 3 or 4, (2) sentence 1, also read in conjunction with sentence 2, (3) sentence 1, 2, 3, 4 or 5, (4) or (5), in sections 254, 256a, 340e (1) sentence 1 or 2, (3) sentence 1, 2, 3 or 4 half-sentence 2, (4) sentence 1 or 2, in section 340f (1) sentence 2 or in section 340g (2) concerning valuation,
c) section 265 (2), (3) or (4), in section 268 (3) or (6), in sections 272, 274 or in section 277 (3) sentence 2 concerning the classification,
d) section 284 (1), (2) no. 1, 2 or 4, (3) or in section 285 nos. 3, 3a, 7, 9 (a) or (b), nos. 10 to 11b, 13 to 15a, 16 to 26, 28 to 33 or number 34 concerning the information to be provided in the notes,
2. in drawing up the consolidated financial statements or the consolidated interim financial statements pursuant to section 340i (4), of a stipulation made in
a) section 294 (1) concerning the scope of consolidation,
b) section 297 (1a), (2) or (3) or section 340i (2) sentence 1 read in conjunction with one of the provisions made in number 1 (a) 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 made in number 1 (b), section 308 (2) or section 308a concerning 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, section 313 or 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 or 289a, section 289f, also read in conjunction with section 340a (1b), or section 340a (1a), also read in conjunction with section 289b (2) or (3) or read in conjunction with section 289c, 289d or section 289e (2), concerning the content of the management report or of the separate non-financial report,
4. in drawing up the consolidated management report or in preparing a separate, consolidated non-financial report, of a stipulation made in sections 315 or section 315a, section 315d, also read in conjunction with section 340i (6) or section 340i (5), also read in conjunction with section 315b (2) or (3) or read in conjunction with section 315c concerning the content of the consolidated management report or of the separate consolidated non-financial report,
5. at disclosure, publication or reproduction, of a stipulation made in section 328 concerning the form, format or content or
6. a statutory instrument issued on the basis of section 330 (2) in conjunction with (1) sentence 1 insofar as this statutory instrument refers to this provision as to administrative fines for certain elements constituting an offence,
will be deemed to have committed a regulatory offence. In the cases governed by sentence 1 no. 3, the contravention of a stipulation made in section 289f (2) no. 4, also read in conjunction with subsections (3) or (4), will not be precluded 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), or in accordance with section 9 subsection (3) or (4) of the Act on Cooperatives (Genossenschaftsgesetz). 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 an institution that is a public-interest entity as defined in section 316a sentence 2 no. 1 or 2, or
2. of an institution 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 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), or that the audit association or the audit office for whom the person is pursuing their activities may not serve as the statutory auditor as stipulated by section 340k subsection (2) sentences 1 and 2 or subsection (3) sentence 2 first half-sentence, 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 an institution 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, 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. An institution within the meaning of sentences 1 and 2 is a credit institution within the meaning of section 340 (1) sentence 1, a financial services institution within the meaning of section 340 (4) sentence 1, a securities institution within the meaning of section 340 (4a) sentence 1 or an institution within the meaning of section 1 (3) of the Payment Services Oversight Act.
(2a) Whoever,
1. acting in the capacity of member of an audit committee instituted pursuant to section 324 (1) sentence 1, also read in conjunction with section 340k (5) sentence 1, by an institution within the meaning of subsection (2) sentence 4 that is not a savings bank
a) 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,
b) 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
c) submits to the shareholders or the body otherwise responsible for appointing the statutory auditor 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, or,
2. acting in the capacity of a member of an audit committee instituted pursuant to section 340k (5) read in conjunction with section 324 (1) sentence 1 of an institution within the meaning of subsection (2) sentence 4 that is a savings bank, fails to monitor the independence of the persons set out in section 340k (3) sentence 2 half-sentence 2 in the manner stipulated by Article 5 paragraph (4) subparagraph 1 sentence 1 of Regulation (EU) No 537/2014 read in conjunction with section 340k (3) sentence 2 or by Article 6 paragraph (2) 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 credit institution 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 against a credit institution that is publicly traded within the meaning of section 264d, the maximum fine will be the highest of the following amounts:
1. 10 million euros or
2. 5 per cent of the aggregate turnover for the year that the credit institution 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 number 2 is,
1. in the case of credit institutions 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 Council Directive 86/635/EEC of 8 December 1986 on the annual accounts and consolidated accounts of banks and other financial institutions (OJ L 372 of 31 December 1986, p. 1; L 316 of 23 November 1988, p. 51), last amended by Directive 2006/46/EC (OJ L 224 of 16 August 2006, p. 1), the total amount of those items posted that, according to the provisions of commercial law applicable to the credit institution or according to the domestic laws applicable to the credit institution, correspond to the items set out in Article 27 numbers 1, 3, 4, 6 and 7 or Article 28 letter (B) nos. 1 to 4 and 7 of Council Directive 86/635/EEC,
2. in 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 enterprise.
Where the credit institution is a parent enterprise or a subsidiary enterprise within the meaning of section 290, the respective 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 credit institution. 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, in the cases governed by subsections (1) and (2a), the Federal Financial Supervisory Authority, in the cases governed by subsection (2), the Auditor Oversight Body with the Federal Office for Economic Affairs and Export Control.
(5) The Federal Financial Supervisory Authority transmits to the Auditor Oversight Body with the Federal Office for Economic Affairs and Export Control all decisions as to administrative fines pursuant to subsection (2a).