Examination of compliance with certain obligations under Regulation (EU) No 648/2012 and Regulation (EU) No 600/2014

(1) Corporations that are neither small corporations within the meaning of section 267(1) of the Commercial Code nor financial counterparties within the meaning of Article 2, point 8 of Regulation (EU) No 648/2012, and that, in the past business year, entered into
1. OTC derivatives within the meaning of Article 2, point 7 of Regulation (EU) No 648/2012 with a total notional volume of more than EUR 200 million, and
2. more than 200 OTC derivative contracts within the meaning of Article 2, point 7 of Regulation (EU) No 648/2012, must, within nine months of the end of the business year, have it examined and certified by a suitable auditor that they have suitable systems in place ensuring compliance with the requirements of Article 4(1), (2) and (3), second subparagraph, Article 9(1) to (3), Article 10(1) to (3), and Article 11(1), (2) and (3), second sentence, and (5) to (11), first subparagraph, of Regulation (EU) No 648/2012, of Article 28(1) to (3) of Regulation (EU) No 600/2014, and of a statutory instrument issued under section 31 of this Act. For purposes of calculating the threshold under the first sentence, numbers 1 and 2, transactions that, as intragroup transactions, are subject to the exemption under Article 4(2) of Regulation (EU) No 648/2012, or are exempted from the requirements of Article 11(3) of Regulation (EU) No 648/2012, are not to be taken into account. The obligations under the first sentence do not apply to undertakings subject to the examination obligations under section 35 of the Insurance Supervision Act or the examination obligations under section 29 of the Banking Act.
(2) Suitable auditors within the meaning of subsection (1), first sentence, are auditors, sworn accountants, and auditing and accounting firms, that have adequate knowledge of the subject matter of the examination. The corporation must appoint the auditor no later than 15 months after the beginning of the business year to which the examination relates.
(3) The auditor must sign the certificate and, within nine months of the end of the business year to which the examination relates, submit it to the legal representatives and to the supervisory board, where the corporation has one. Before the certificate is forwarded to the supervisory board, the management must be given the opportunity to comment. In the certificate, the auditor must report in writing on the results of the examination. Where the auditor becomes aware, in the course of the examination, of serious breaches of the requirements of subsection (1), the auditor must inform the Bundesanstalt without delay. Section 323 of the Commercial Code applies correspondingly.
(4) Where the auditor's certificate states findings of deficiencies, the corporation must transmit the certificate to the Bundesanstalt without delay. Where an auditor establishes that the management has failed to make a corresponding transmission to the Bundesanstalt in a business year preceding the period under examination, the auditor must notify this to the Bundesanstalt without delay. The Bundesanstalt transmits to the Chamber of Public Accountants facts suggesting a breach of professional duties by the auditor. Section 110(1), second sentence applies correspondingly.
(5) The obligations under subsection (1) in conjunction with subsections (2) to (4) also apply to general partnerships and limited partnerships within the meaning of section 264a(1) of the Commercial Code. Section 264a(2) of the Commercial Code applies correspondingly.
(6) The Federal Ministry of Finance may, by statutory instrument not requiring the consent of the Bundesrat, in agreement with the Federal Ministry of Justice and Consumer Protection, adopt further provisions on the nature, scope and timing of the examination under subsection (1) and on the nature and scope of the certificates under subsection (3), insofar as necessary for the performance of the Bundesanstalt's tasks, in particular to promote compliance with the obligations and requirements referred to in subsection (1), first sentence, and to obtain uniform documentation. The Federal Ministry of Finance may transfer this authorisation, by statutory instrument, in agreement with the Federal Ministry of Justice and Consumer Protection, to the Bundesanstalt.