(1) Section 319 (1) to (4), section 319b (1), section 320 subsection (1) sentence 2 and subsection (2) sentences 1 and 2 of the Commercial Code apply accordingly to the selection of the merger auditors and their right to demand information. Insofar as legal entities are concerned that are public-interest entities in accordance with section 316a sentence 2 of the Commercial Code, Article 5 (1) 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) will apply accordingly, besides sentence 1 of this provision, to the selection of the merger auditors, with the proviso that instead of the periods set out in Article 5 (1), first subparagraph, letters
(a) and
(b) of Regulation (EU) No 537/2014, that period is to apply that lies between the beginning of the fiscal year preceding the fiscal year in which the merger agreement was agreed and the point in time at which the merger auditor has submitted the audit report defined in section 12. Inasmuch as legal entities are concerned that are not under obligation to have their annual financial statements audited, sentence 1 applies accordingly. In this context, section 267 (1) to (3) of the Commercial Code applies accordingly to any allocations of the legal entities to size categories. The right to demand information exists vis-à-vis all of the legal entities involved in the merger and vis-à-vis an affiliate company in the group, as well as vis-à-vis a controlled and a controlling enterprise.
(2) Section 323 of the Commercial Code applies accordingly to the responsibilities of the merger auditors, their agents and the legal representatives of an auditing firm cooperating and assisting with the audit. Such responsibilities exist vis-à-vis the legal entities involved in the merger and the owners of their shares.