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 examine the institution's economic circumstances. In auditing the annual financial statements, the auditor must in particular establish whether the institution has complied with the notification obligations under section 10(5), section 11(4), section 21(4), first sentence, section 28(1), also in conjunction with a statutory instrument under section 28(4). The auditor must also examine whether the institution has complied with its obligations 1. under the Anti-Money Laundering Act and Regulation (EU) 2023/1113, 2. under section 3, under section 15, also in conjunction with a statutory instrument under section 15(3), under sections 16 to 18, 25 to 30, 36, 45, 46 and 48 to 55, 3. under Regulation (EU) 2021/1230 of the European Parliament and of the Council of 14 July 2021 on cross-border payments in the Union (OJ L 274, 30.7.2021, p. 20), as amended by Regulation (EU) 2024/886 (OJ L, 2024/886, 19.3.2024), and under Regulation (EU) No 260/2012 of the European Parliament and of the Council of 14 March 2012 establishing technical and business requirements for credit transfers and direct debits in euro and amending Regulation (EC) No 924/2009 (OJ L 94, 30.3.2012, p. 22), as last amended by Regulation (EU) 2024/886 (OJ L, 2024/886, 19.3.2024), 4. under Regulation (EU) 2015/751 of the European Parliament and of the Council of 29 April 2015 on interchange fees for card-based payment transactions (OJ L 123, 19.5.2015, p. 1), and 5. under 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 Article 30 of Regulation (EU) 2022/2554.
(2) The auditor must without delay notify BaFin and the Deutsche Bundesbank where facts come to its knowledge during the audit 1. that justify restricting or refusing the audit certificate, 2. that jeopardise the institution's continued existence or may materially impair its development, 3. that constitute a serious breach of the provisions on the conditions for the institution's authorisation or on the conduct of an activity under this Act, or 4. that reveal serious breaches by the managers against statute, the articles of association or the partnership agreement. On the request of BaFin or the Deutsche Bundesbank, the auditor must explain the audit report to them and communicate other facts that came to its knowledge during the audit that indicate that the institution's business is not being conducted properly. The notification, explanation and communication obligations under the first and second sentences also apply in relation to an undertaking closely linked to the institution, insofar as the facts came to the auditor's knowledge in the course of auditing the institution. The auditor is not liable for the accuracy of facts that it notifies in good faith under this subsection.
(3) The Federal Ministry of Finance is authorised to issue, by statutory instrument not requiring the consent of the Bundesrat, in agreement with the Federal Ministry of Justice and Consumer Protection and after hearing the Deutsche Bundesbank, more detailed provisions on the subject matter of the audit, the time of its conduct and the content of the audit reports, and the form of their submission, insofar as this is necessary for BaFin to perform its tasks. In particular, the provisions must be suitable for detecting shortcomings that jeopardise the safety of the assets entrusted to the institution, or that could impair the proper conduct of payment services or the proper carrying-on of the e-money business, and for obtaining uniform documentation for assessing the business conducted by the institutions. The Federal Ministry of Finance may transfer the authorisation, by statutory instrument, to BaFin, on condition that the statutory instrument is issued in agreement with the Federal Ministry of Justice. The leading associations of the institutions must be heard before the statutory instrument is issued.
(4) Section 29 of the Banking Act remains unaffected. Without prejudice to subsections (1) to (3), BaFin may also make provisions, as against the institution, on the content of the audit to be taken into account by the auditor in the annual audit. It may in particular determine areas of focus for the audits.