Special duties of the auditor; authorisation to issue statutory instruments

(1) As part of the audit of the annual financial statements and of any interim financial statements, the auditor must also audit the economic circumstances of the securities institution. This includes auditing compliance with the own funds and liquidity requirements and their proper determination by the securities institution. In auditing the annual financial statements the auditor must in particular establish whether the securities institution has complied with the following notification obligations and requirements:
1. the notification obligations under sections 64, 66 and 70 to 72 of this Act, and Articles 54 and 55 of Regulation (EU) 2019/2033;
2. the requirements of sections 38 to 46 and 69a, insofar as applicable to the securities institution;
3. the requirements under sections 20, 21 and 40;
4. the requirements under sections 17, 20, 23, 25 and 27 of the Financial Conglomerates Supervision Act;
5. insofar as the securities institution carries on business affected by them, the requirements under
a) Article 4(1), (2) and (3), second subparagraph, Articles 4a and 9(1) to (4), and Article 11(1) to (10), (11), first subparagraph and (12) of Regulation (EU) No 648/2012,
b) Article 4(1), first subparagraph, Article 5a(1) and Articles 8b to 8d of Regulation (EC) No 1060/2009 of the European Parliament and of the Council of 16 September 2009 on credit rating agencies (OJ L 302, 17.11.2009, p. 1; L 350, 29.12.2009, p. 59; L 145, 31.5.2011, p. 57; L 267, 6.9.2014, p. 30), as last amended by Regulation (EU) 2017/2402 (OJ L 347, 28.12.2017, p. 35), insofar as this is not audited under section 29(2) in conjunction with section 89(1), first sentence of the Securities Trading Act,
c) Article 4(1) to (5) and Article 15 of Regulation (EU) 2015/2365,
d) Articles 16, 23(3), first sentence, (5), (6) and (10), Article 28(2), and Article 29 of Regulation (EU) 2016/1011,
e) Article 28(1) to (3) of Regulation (EU) No 600/2014,
f) Articles 5 to 9, 18 to 26, 27(1) and (4), and Article 43(5) and (6) of Regulation (EU) 2017/2402,
g) Articles 3 to 11 of Regulation (EU) 2022/858 of the European Parliament and of the Council of 30 May 2022 on a pilot regime for market infrastructures based on distributed ledger technology and amending Regulations (EU) No 600/2014 and (EU) No 909/2014 and Directive 2014/65/EU (OJ L 151, 2.6.2022, p. 1),
h) Articles 5 to 14, 16 to 19, 23 to 25, 28 to 30 and 45(3) of Regulation (EU) 2022/2554, also in conjunction with a delegated regulation under Article 15, 16, 20, 28 or 30 of Regulation (EU) 2022/2554,
i) section 5(1) and (2) and sections 7 to 11 and 16 to 22 of the Electronic Securities Act, also in conjunction with a statutory instrument under section 23 of the Electronic Securities Act. Where the Bundesanstalt has made determinations vis-à-vis the securities institution under subsection (4) concerning the content of the audit, these must be taken into account by the auditor. In the case of a medium-sized securities institution that was requested to draw up a recovery plan under section 12 of the Recovery and Resolution Act, the auditor must also audit whether the recovery plan satisfies the requirements of section 12(1) and section 13(1) to (4) of the Recovery and Resolution Act. The result must be included in the audit report.
(2) The auditor must also audit whether the securities institution has complied with its obligations under Chapter 4 of this Act and the Anti-Money Laundering Act. The auditor must also audit compliance with the notification and disclosure obligations and other requirements of Articles 5 to 10 and 12 to 14 of Regulation (EU) No 236/2012 of the European Parliament and of the Council of 14 March 2012 on short selling and certain aspects of credit default swaps (OJ L 86, 24.3.2012, p. 1), as last amended by Regulation (EU) No 909/2014 (OJ L 257, 28.8.2014, p. 1). In the case of securities institutions carrying on the safekeeping and administration business referred to in section 2(3), no. 1 or the restricted custody business, the auditor must audit that business separately, insofar as it is not audited under section 89(1), second sentence of the Securities Trading Act; this audit must also extend to compliance with section 128 of the Stock Corporation Act on notification obligations and section 135 of the Stock Corporation Act on the exercise of voting rights.
(3) The auditor must notify the Bundesanstalt and the Deutsche Bundesbank without delay where, in the course of the audit, facts come to the auditor's knowledge that justify a qualification or refusal of the audit certificate, that could jeopardise the continued existence of the securities institution or materially impair its development, that constitute a material breach of the provisions on the licensing requirements of the securities institution or the conduct of an activity under this Act, or that reveal serious breaches by the managers of statute, articles of association or the partnership agreement of the securities institution. On request of the Bundesanstalt or the Deutsche Bundesbank, the auditor must describe to it the nature and scope of its procedure, explain the audit report, and communicate to the Bundesanstalt and the Deutsche Bundesbank other facts that came to the auditor's knowledge during the audit that indicate the business of the securities institution is not being properly conducted. The notification, explanation and communication obligations under the first and second sentences also exist in respect of an undertaking closely linked with the securities institution, insofar as the facts come to the auditor's knowledge in the course of auditing the securities institution. The auditor is not liable for the accuracy of facts notified in good faith under this subsection.
(4) Without prejudice to the special duties of the auditor under subsections (1) to (3), the Bundesanstalt may also make determinations vis-à-vis the securities institution concerning the content of the audit, to be taken into account by the auditor in the annual audit. In particular it may set priorities for the audits.
(5) Where the securities institution belongs to a securities institution group within the meaning of Article 4(1), point 25 of Regulation (EU) 2019/2033, and the undertaking required to carry out the consolidation under Article 7 of that Regulation, or the group capital test under Article 8 of that Regulation, has its seat domestically, the auditor must audit and report whether
1. the group responsible for compliance with the provisions was correctly determined;
2. the requirements for consolidation under Article 7, or for the group capital test under Article 8, of that Regulation were complied with; and
3. the returns to be made at group level under Article 55 of that Regulation were accurately submitted. Where several domestically resident securities institutions belong to the securities institution group, this audit is incumbent on the auditor auditing the securities institution with the higher balance-sheet total, unless the Bundesanstalt determines otherwise.
(6) The Federal Ministry of Finance is authorised, in respect of small and medium-sized securities institutions, in agreement with the Federal Ministry of Justice and Consumer Protection and after hearing the Deutsche Bundesbank, by statutory instrument not requiring the consent of the Bundesrat, to make more detailed provisions, for the performance of the tasks of the Bundesanstalt, on
1. the subject matter of the audit under subsections (1) and (2);
2. the timing of its conduct; and
3. the form and content of the audit reports. The statutory instrument serves in particular to prevent and remedy undesirable developments that could jeopardise the safety of the assets entrusted to a securities institution, or that could impair the proper conduct of the investment services, ancillary investment services and ancillary business, and to obtain uniform documents for assessing the business conducted by the securities institution. The statutory instrument may provide that the duties governed in subsections (1) to (3) must also be observed in auditing the consolidated financial statements of a financial holding group or mixed investment holding group, or of a financial conglomerate; more detailed provisions on the subject matter of the audit, the timing of its conduct, and the content of the audit report may be made in this regard in accordance with the first sentence. The Federal Ministry of Finance may transfer this authorisation, by statutory instrument not requiring the consent of the Bundesrat, to the Bundesanstalt.