Initiation of an examination of financial reporting, and investigative powers of the Bundesanstalt

(1) The Bundesanstalt initiates an examination of financial reporting where there are concrete indications of a breach of accounting provisions; initiation is dispensed with where there is manifestly no public interest in clarification. The Bundesanstalt may also initiate an examination of financial reporting where it is carrying out, or has carried out, an examination under section 44(1), third sentence, of the Banking Act, section 14(2), second sentence, of the Capital Investment Code, section 5(4), second sentence, of the Securities Institutions Act, section 19(1), second sentence, of the Payment Services Supervision Act, or section 306(1), no. 1, of the Insurance Supervision Act, where the examinations relate to the same subject matter. The Bundesanstalt may also initiate an examination of financial reporting without any particular occasion (random sample examination). Only the following statements and reports are examined:
1. the most recently adopted annual financial statements and the accompanying management report,
2. the most recently disclosed annual financial statements and the accompanying management report,
3. the most recently disclosed single-entity financial statements under section 325(2a) of the Commercial Code and the accompanying management report,
4. the most recently approved consolidated financial statements and the accompanying group management report,
5. the most recently disclosed consolidated financial statements and the accompanying group management report,
6. the most recently published condensed financial statements and the accompanying interim management report, and
7. the most recently published payment report or consolidated payment report. Where the Bundesanstalt initiates an examination of financial reporting, it may announce this on its website, naming the undertaking concerned and the reason for initiating the examination, insofar as there is a public interest in this; where the Bundesanstalt initiates an examination under the first sentence, an announcement is to be made. The announcement of the reason for initiation may not contain personal data. The third sentence does not apply to the examination of the condensed financial statements and the accompanying interim management report, or of the payment report and consolidated payment report. The examination may be continued notwithstanding the lapse of the admission of the securities to trading on the regulated market, in particular where the subject matter of the examination is an error the announcement of which is in the public interest. The announcement under the fifth sentence must also be transmitted without delay to the body responsible for the company register, for entry in the company register.
(2) The subject matter of the examination may also include the statements and reports relating to the two financial years preceding the financial year referred to in subsection (1), fourth sentence; a random sample examination is not permitted in this respect.
(3) An examination of the annual financial statements and the accompanying management report by the Bundesanstalt does not take place for as long as an action for nullity under section 256(7) of the Stock Corporation Act is pending. Where a special auditor has been appointed under section 142(2) or section 258(1) of the Stock Corporation Act, an examination likewise does not take place, insofar as the subject matter of the special examination, the examination report, or a court decision on the special auditors' final findings under section 260 of the Stock Corporation Act, extends to it.
(4) In carrying out the examination, the Bundesanstalt may make use of other bodies and persons. The Bundesanstalt may transmit information to other bodies and persons of which it makes use under the first sentence, even where that information is subject to statutory duties of confidentiality, insofar as the bodies or persons need the information to carry out the tasks assigned to them under the first sentence within the framework of an examination. Before transmitting the information, the Bundesanstalt anonymises any personal data contained in it, insofar as it is not strictly necessary for carrying out the assigned tasks. The bodies or persons must delete personal data transmitted to them no later than on completion of the tasks assigned to them.
(5) Insofar as necessary to perform the tasks under section 106, the Bundesanstalt, and the persons of whom the Bundesanstalt makes use in carrying out its tasks, may require information, the submission of documents or other data, and the provision of copies, from the undertaking examined, from the members of its governing bodies, from its employees, and from its statutory auditors. At the Bundesanstalt's request, the information under the first sentence must be transmitted electronically. The Bundesanstalt may also require transmission in a communication procedure and format that it specifies. The Bundesanstalt may summon and examine the persons obliged under the first sentence. The first to fourth sentences also apply to subsidiary undertakings to be included in the consolidated financial statements under the provisions of the Commercial Code. The powers under the first and fourth sentences apply as against anyone, where the conditions under subsection (1), first sentence, are satisfied. Insofar as necessary within the framework of requests for information or submission under the first sentence, including in conjunction with the fifth or sixth sentence, or within the framework of examinations under the fourth sentence, including in conjunction with the fifth or sixth sentence, the undertakings or persons requested must also disclose personal data to the Bundesanstalt or to the persons of whom the Bundesanstalt makes use in carrying out its tasks. The statutory auditors' duty to provide information is limited to facts that came to their knowledge in the course of the statutory audit. Section 6(15) applies correspondingly to the right to refuse information or testimony, and to the duty to give notice of that right.
(6) Persons obliged to provide information and to submit documents under subsection (5) must permit the staff of the Bundesanstalt, or persons engaged by it, to enter their land and business premises during normal working hours, insofar as this is necessary to perform their tasks. Section 6(11), second sentence, applies correspondingly. The fundamental right to the inviolability of the home (Article 13 of the Basic Law) is restricted to this extent.
(7) Staff of the Bundesanstalt may search business and residential premises where this is necessary to perform the tasks under section 106 and there are concrete indications of a material breach of accounting provisions. The fundamental right under Article 13 of the Basic Law is restricted to this extent. Section 105(2) of the Code of Criminal Procedure applies correspondingly. In the course of the search, staff of the Bundesanstalt may seize objects that may be significant as evidence for establishing the facts. Where the objects are in the possession of a person and are not voluntarily surrendered, staff of the Bundesanstalt may confiscate them. Searches and confiscations must, except where there is danger in delay, be ordered by a judge. The Frankfurt am Main Local Court has jurisdiction. An appeal against the judicial decision is admissible. Sections 306 to 310 and 311a of the Code of Criminal Procedure apply correspondingly. For confiscations without a judicial order, section 98(2) of the Code of Criminal Procedure applies correspondingly. The Frankfurt am Main Local Court has jurisdiction for the subsequently obtained judicial decision. A record must be made of the search. It must state the responsible office, the reason, time and place of the search, and its outcome.
(8) The Bundesanstalt may announce, on its website, material procedural steps and findings obtained in the course of the procedure in connection with financial reporting, naming the undertaking concerned, insofar as there is a public interest in this. The announcement of the procedural steps and findings may not contain personal data.
(9) The Bundesanstalt deletes the information announced on its website under subsection (1), sixth sentence, and subsection (8), ten years after the announcement.