Examination of reporting obligations and rules of conduct; authorisation to issue statutory instruments

(1) Without prejudice to section 88, a suitable auditor must examine once a year whether the following obligations are being complied with: 1. the reporting obligations under Article 26 of Regulation (EU) No 600/2014, including in conjunction with the regulatory technical standards adopted under those Articles, 2. the obligation to report positions under section 57(1) to (4), 3. the notification obligations under section 23, 4. the obligations regulated in this Part, including in conjunction with regulatory technical standards adopted under Article 17(7), Article 27(10) and Article 32(2) of Directive 2014/65/EU, and 5. the obligations arising from a) Articles 4, 16 and 20 of Regulation (EU) No 596/2014, including in conjunction with the regulatory technical standards adopted under those Articles, b) Articles 3 to 15, 17, 18, 20 to 23, 25, 27, 31 and 39a of Regulation (EU) No 600/2014, including in conjunction with the regulatory technical standards adopted under those Articles, c) Delegated Regulation (EU) 2017/565, d) Delegated Regulation (EU) 2017/567, e) section 29(2) in conjunction with Article 4(1), first subparagraph, and Article 5a(1) of Regulation (EC) No 1060/2009, f) Articles 3 to 13 of Regulation (EU) 2019/2088, g) Articles 5 to 7 of Regulation (EU) 2020/852, as amended. At credit institutions conducting custody business within the meaning of section 1(1), second sentence, no. 5 of the Banking Act, at securities institutions conducting restricted custody business within the meaning of section 2(4), no. 1 of the Securities Institutions Act, and at financial services institutions providing restricted custody business within the meaning of section 1(1a), second sentence, no. 12 of the Banking Act, the auditor must also examine those businesses specially; that examination must also extend to compliance with section 67a(3) and section 67b, including in each case in conjunction with section 125(1), (2) and (5) of the Stock Corporation Act on notification obligations, and section 135 of the Stock Corporation Act on the exercise of voting rights. The Bundesanstalt may, on application, dispense wholly or in part with the annual examination, save for the examination of compliance with the requirements under section 84, including in conjunction with a statutory instrument under section 84(10), insofar as this is warranted for particular reasons, in particular on account of the nature and scale of the business conducted. The investment services undertaking must appoint the auditor no later than the end of the financial year to which the examination relates. At credit institutions that belong to a cooperative auditing association, or that are 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, as regards the latter, this is provided for by state law. Suitable auditors also include auditors, sworn account auditors, and auditing firms that have sufficient knowledge as regards the subject matter of the examination.
(2) The auditor, or the auditing associations or auditing offices, insofar as examinations under subsection (1), fifth sentence, are carried out by cooperative auditing associations or the auditing offices of savings-bank and giro associations, must prepare an examination report on the examination under subsection (1) and submit it to the Bundesanstalt on request. The main examination findings must be summarised in a questionnaire to be attached to the examination report. The questionnaire must be submitted to the Bundesanstalt even where an examination report under the first sentence is not requested. The auditor must submit the questionnaire without delay after completion of the examination.
(3) The investment services undertaking must notify the Bundesanstalt of the auditor before awarding the examination engagement. The Bundesanstalt may, within two months of receipt of the notification, require the appointment of a different auditor where this is warranted to achieve the purpose of the examination. The appointment of a different auditor is, as a rule, warranted to achieve the purpose of the examination where an investment services undertaking has notified the Bundesanstalt of the same auditor for at least eleven consecutive financial years. An objection and an action for rescission against a measure under the second sentence have no suspensive effect. The first to fourth sentences do not apply to investment services undertakings that belong to a cooperative auditing association or that are examined by the auditing office of a savings-bank and giro association.
(4) The Bundesanstalt may issue determinations to the investment services undertaking regarding the content of the examination, to be taken into account by the auditor. It may in particular set priorities for the examinations. In the event of serious breaches of the obligations whose compliance is to be examined under subsection (1), first sentence, the auditor must inform the Bundesanstalt without delay. The Bundesanstalt may take part in the examinations. For this purpose the start of the examination must be notified to the Bundesanstalt in good time.
(5) The Bundesanstalt may, even without any particular occasion, carry out the examination under subsection (1) itself or through agents, in place of the auditor. The investment services undertaking must be informed of this in good time.
(6) 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 submission of the examination reports under subsection (2), and further provisions on the nature, scope and timing of the examination under subsections (1) and (2), insofar as this is necessary for the Bundesanstalt to perform its tasks, in particular to counteract abuses in the trading of financial instruments, to promote compliance with the obligations subject to the examination under subsection (1), first sentence, and to obtain uniform documentation for this purpose. The Federal Ministry of Finance may transfer this authorisation, by statutory instrument, to the Bundesanstalt.