Supervision and examination of the obligations of crowdfunding service providers under Regulation (EU) 2020/1503 and Regulation (EU) 2022/2554; authorisation to issue statutory instruments

(1) In order to monitor compliance with 1. the obligations under Regulation (EU) 2020/1503, as amended from time to time, and 2. the requirements under Articles 5 to 14, 16 to 19, 23 to 25, 28 to 30 and 45(3) of Regulation (EU) 2022/2554, including in conjunction with a delegated regulation under Articles 15, 16, 20, 28 or Article 30 of Regulation (EU) 2022/2554, insofar as, in the individual case, an examination of those provisions is not also required to take place under section 78(1) of the Securities Institutions Act or section 29 of the Banking Act, the Bundesanstalt may, even without any particular occasion, carry out examinations at crowdfunding service providers within the meaning of Article 2(1), letter e) of Regulation (EU) 2020/1503, at undertakings with which an outsourcing agreement exists or existed, and at other third persons or undertakings engaged to carry out those activities.
(2) Without prejudice to subsection (1), a suitable auditor must examine once a year whether the crowdfunding service providers meet the obligations to be complied with under Regulation (EU) 2020/1503 and the requirements referred to in subsection (1), number 2 under Regulation (EU) 2022/2554. The Bundesanstalt may, on application, wholly or partly dispense with the annual examination, having regard to the nature and scope of the business conducted. The crowdfunding service provider must appoint the suitable auditor no later than the end of the business year to which the examination relates. For crowdfunding service providers belonging to a cooperative auditing association, or examined by the auditing office of a savings bank and giro association, the examination is carried out by the competent auditing association or the competent auditing office, insofar as, in the case of the latter, Land law so provides. Suitable auditors also include auditors, sworn accountants, and auditing and accounting firms, that have adequate knowledge of the subject matter of the examination.
(3) An examination report must be prepared on the examination under subsection (2) and submitted on request by the Bundesanstalt. The material examination findings must be summarised in a questionnaire to be enclosed with the examination report. The questionnaire must also be submitted to the Bundesanstalt where an examination report under the first sentence is not requested. The questionnaire must be submitted without delay after conclusion of the examination.
(4) The crowdfunding service provider must notify the Bundesanstalt of the auditor before awarding the audit engagement. The Bundesanstalt may, within two months of receipt of the notification, require the appointment of a different auditor, where this is necessary to achieve the purpose of the examination. The appointment of a different auditor is as a rule necessary to achieve the purpose of the examination where a crowdfunding service provider has notified the Bundesanstalt of the same auditor for at least eleven consecutive business years. The first to third sentences do not apply to crowdfunding service providers belonging to a cooperative auditing association, or examined by the auditing office of a savings bank and giro association.
(5) The Bundesanstalt may make determinations, as against the crowdfunding service provider, on the content of the examination that must be taken into account by the auditor. It may in particular set priorities for the examinations. Where there is a suspicion of serious breaches of the obligations whose compliance is to be examined, the auditor must inform the Bundesanstalt without delay. The Bundesanstalt may take part in the examinations. For this purpose the Bundesanstalt must be notified in good time of the start of the examination.
(6) The Bundesanstalt may, even without any particular occasion, carry out the examination under subsection (2) itself or through representatives, instead of the auditor. The crowdfunding service provider must be informed of this in good time.
(7) An objection and an action for rescission against measures under subsections (1) to (6) have no suspensive effect.
(8) The Federal Ministry of Finance may, by statutory instrument not requiring the consent of the Bundesrat, adopt further provisions on the structure, content and manner of the examination reports to be submitted under subsection (3), and further provisions on the nature, scope and timing of the examination under subsections (1) and (2), in order to counteract undesirable developments in the provision of crowdfunding services under Regulation (EU) 2020/1503, to promote compliance with the obligations subject to examination under subsection (2), first sentence, and to obtain uniform documentation for that purpose. The Federal Ministry of Finance may transfer this authorisation, by statutory instrument, to the Bundesanstalt.