Content of annual financial statements and management reports

(1) All issuers of asset investments with their seat in Germany must comply, for the annual financial statements, with the provisions of the First Subdivision of the Second Division of the Third Book of the Commercial Code, and, for the management report, with the provisions of section 289 of the Commercial Code, and must attach to the annual financial statements and the management report declarations under section 264(2), third sentence and section 289(1), fifth sentence of the Commercial Code; issuers of asset investments must supplement the annual financial statements with a cash flow statement; this does not apply to issuers satisfying the classification as small within the meaning of section 267 of the Commercial Code. Section 264(1), fourth sentence, first half-sentence and fifth sentence, (3), (4), and section 264b of the Commercial Code do not apply. The management report must additionally contain the following particulars:
1. the total amount of remuneration paid in the past financial year, broken down into fixed and variable remuneration paid by the issuer of the asset investments, the number of beneficiaries, and, where applicable, the special profit-sharing payments paid by the issuer of the asset investments, and
2. the total amount of remuneration paid in the past financial year, broken down by managers and employees whose professional activity materially affects the risk profile of the issuer of the asset investments. The first to third sentences and section 23 apply accordingly to the last annual financial statements and management report of the issuer of asset investments before the public offer of asset investments. Where the issuer was founded less than 18 months before a sales prospectus was submitted for approval under section 8, and has not yet drawn up an annual financial statements and management report, current and future financial information must be included in the sales prospectus in accordance with the statutory instrument issued under section 7(3).
(2) Where the issuer of the asset investments is a commercial partnership or the undertaking of a sole trader, the other assets of the partners or the sole trader (private assets) may not be included in the balance sheet, and the expenditure and income attributable to the private assets may not be included in the profit and loss account.
(3) Issuers of asset investments with their seat in another Member State of the European Union or in another contracting state to the Agreement on the European Economic Area must apply, for the annual financial statements, the equivalent accounting provisions applicable there for corporations. Where the issuer is required, under the provisions there, to prepare a management report, the provisions applicable there for corporations must also be applied in that respect. The management report must additionally contain the particulars named in subsection (1), third sentence. Where the law there does not provide for the preparation of a management report, the particulars under subsection (1), third sentence may also be included in the annual financial statements, or attached in a separate declaration. Subsection (1), fourth and fifth sentences apply accordingly. Where the annual financial statements or the management report that an issuer must prepare under the provisions applicable under the first to fourth sentences are not drafted in German, a translation into German must be attached.
(4) Issuers of asset investments with their seat outside the Member States of the European Union and the other contracting states to the Agreement on the European Economic Area must prepare annual financial statements and a management report in German, in accordance with the accounting provisions in force in Germany applicable to corporations. Subsections (1) and (2) apply accordingly.
(5) BaFin may order an examination of the accounting of issuers of asset investments, insofar as concrete indications, in particular on the basis of submissions by third parties, of a breach of accounting provisions exist. BaFin may determine focal points for the individual examination; the scope of the individual examination should be determined in the respective examination order. BaFin appoints other bodies and persons to carry out the examination; it may participate in the examination. Section 107(2) of the Securities Trading Act applies accordingly. An examination also does not take place where proceedings under section 107 of the Securities Trading Act are pending, insofar as the subject matter of the balance sheet control procedure extends.
(6) The issuer of an asset investment, the members of its bodies, its employees, and its statutory auditors must, on request, provide information and produce documents to the bodies and persons that BaFin employs to perform its tasks, and to BaFin, insofar as this is necessary for the examination; the statutory auditors' duty to provide information is limited to facts that became known to them in the course of the audit. The first sentence also applies with regard to group undertakings and dependent or controlling undertakings. The right to refuse to provide information, and the duty to advise of that right, are governed accordingly by section 19(3). Persons obliged to provide information and produce documents must permit the employees of BaFin, or persons engaged by it, insofar as necessary for the performance of their tasks, to enter their land and business premises during the usual working hours. Section 6(11), second sentence of the Securities Trading Act applies accordingly. The fundamental right to the inviolability of the home (Article 13 of the Basic Law) is restricted to that extent.
(7) The bodies and persons that BaFin employs to carry out the examination must report to it, without delay after conclusion of the examination, on its result, in an electronic format determined by BaFin; on BaFin's request, this must be done through its notification and publication system. The report must include all facts of which knowledge is necessary for BaFin to assess the matter examined. The report must name the auditor responsible. The bodies and persons appointed by BaFin to carry out the examination are entitled to reimbursement of reasonable out-of-pocket expenses and to remuneration for their activity. BaFin may determine the expenses and remuneration of the auditor as against the issuer. Section 323 of the Commercial Code applies accordingly.
(8) BaFin must report to the authorities competent for prosecution facts giving rise to the suspicion of a regulatory offence or a criminal offence in connection with the accounting of an issuer of asset investments. BaFin transmits to the Chamber of Public Accountants facts suggesting the existence of a breach of professional duty by the statutory auditor.