(1) Sections 340a to 340o of the Commercial Code apply correspondingly to the annual financial statements, the management report, and the audit report of an external capital management company. Section 26 of the Banking Act applies correspondingly, with the proviso that the obligations regulated there towards the Deutsche Bundesbank do not apply, and the adopted annual financial statements and the management report must be transmitted to the Federal Institute on request.
(2) Section 28 of the Banking Act applies correspondingly to the appointment of a statutory auditor, with the proviso that the obligations regulated there towards the Deutsche Bundesbank do not apply.
(3) In auditing the annual financial statements, the statutory auditor must also examine the financial circumstances of the external capital management company. The auditor must establish whether the external capital management company has satisfied its obligations under the Anti-Money Laundering Act, and has complied with the notification obligations under sections 34, 35, 49, and 53, the requirements under sections 25 to 28, 29, 30, 36, and 37, and the requirements under
1. Article 4(1), (2), and (3), second subparagraph, Article 4a, and Article 9(1) to (4), and Article 11(1) to (10), (11), first subparagraph, and (12), of Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties, and trade repositories (OJ L 201, 27.7.2012, p. 1; L 321, 30.11.2013, p. 6), as last amended by Regulation (EU) 2019/2099 (OJ L 322, 12.12.2019, p. 1),
2. Articles 4 and 15 of Regulation (EU) 2015/2365,
3. Article 16(1) to (4), Article 23(3) and (10), and Article 28(2) of Regulation (EU) 2016/1011,
4. Article 28(1) to (3) of Regulation (EU) No 600/2014 of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Regulation (EU) No 648/2012 (OJ L 173, 12.6.2014, p. 84; L 6, 10.1.2015, p. 6; L 270, 15.10.2015, p. 4; L 278, 27.10.2017, p. 54), as last amended by Regulation (EU) 2022/2554 (OJ L 333, 27.12.2022, p. 1),
5. Articles 4 to 6, 9 to 21, 23 to 34, and 36 of Regulation (EU) 2017/1131,
6. Articles 5 to 9 and 18 to 27 of Regulation (EU) 2017/2402,
7. Articles 3 to 10 and 12 to 13 of Regulation (EU) 2019/2088,
8. Articles 5 to 7 of Regulation (EU) 2020/852, and
9. Articles 5 to 14, 17 to 19, 23 to 25, 28 to 30, and 45(3) of Regulation (EU) 2022/2554, also in conjunction with a delegated regulation under Article 15, 20, 28, or Article 30 of Regulation (EU) 2022/2554. Section 29(3) of the Banking Act applies correspondingly, with the proviso that the obligations regulated there towards the Deutsche Bundesbank do not apply. The Federal Institute may carry out the audit under the first and second sentences itself, or through agents, in place of the auditor, without any particular occasion. The capital management company must be informed of this in good time.
(4) Insofar as the external capital management company provides ancillary services under section 20(2) or (3), the statutory auditor must audit these ancillary services separately. Where ancillary services within the meaning of section 20(2), points 1 to 3, or subsection (3), points 2 to 5, are provided, the audit also covers compliance with the provisions named in section 5(2), first sentence, and the requirements as to initial capital named in section 5(2), second and third sentences. The audit may also be carried out by a suitable auditor within the meaning of section 89(1), sixth sentence, of the Securities Trading Act. Section 89(4) and (5) of the Securities Trading Act applies correspondingly. At the request of the capital management company, the Federal Institute may wholly or partly dispense with the separate audit of the provisions of the Securities Trading Act named in section 5(2), with the exception of the audit of compliance with the requirements under section 84 of the Securities Trading Act, insofar as this is indicated for particular reasons, in particular owing to the nature and scale of the business conducted.
(4a) Without prejudice to the statutory auditor's particular obligations under subsections (3) and (4), the Federal Institute may also make determinations, addressed to the capital management company, on the content of the audit to be taken into account by the statutory auditor within the framework of the audit of the annual financial statements. In particular, it may set priorities for the audits.
(5) The Federal Ministry of Finance is authorised, in agreement with the Federal Ministry of Justice and Consumer Protection, to issue, by statutory instrument not requiring the consent of the Bundesrat, more detailed provisions on the timing of the audit, the subject matter of the audit under subsections (3) and (4), further content, scope, and presentation of the audit report, and the manner of its submission to the Federal Institute, insofar as this is necessary for the Federal Institute to perform its tasks, in particular to obtain uniform documents for assessing the activity of the external capital management company. The Federal Ministry of Finance may transfer this authorisation, by statutory instrument, to the Federal Institute.
Subdivision 3
Further Measures of the Supervisory Authority