Accounting Control Act And Amendment Of The Financial Market Authority Act

Original Language Title: Rechnungslegungs-Kontrollgesetz sowie Änderung des Finanzmarktaufsichtsbehördengesetzes

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.

21. Federal Law, with which an Accounting Control Act is adopted and the Financial Market Supervisory Authority is amended

The National Council has decided:

Article 1

Federal law on the establishment of an audit procedure for financial reporting of companies whose securities are admitted to trading on a regulated market (Accounting Control Act-RL-KG)

Section 1: Control authority

FMA

§ 1. (1) The FMA is a control authority for compliance with accounting rules by companies whose securities are admitted to trading on a regulated market in Germany (companies). In the light of the public interest in the accuracy of the financial reporting, the Commission has to carry out an audit of the accounts of a company itself or to arrange it by the examination office in accordance with Section 3 (3). The test scope for the test site shall be determined in the examination order.

(2) The FMA has to draw up an annual audit plan for examinations in accordance with § 2 para. 1 Z 2. It has annual audit priorities to be established and to publish them. The FMA has to submit proposals to the FMA for this purpose.

(3) The FMA has to take into account the enforcement of this Federal Act in the Rules of Procedure according to § 6 FMABG.

Subject matter

§ 2. (1) The FMA has to examine whether the annual accounts, annual reports, consolidated financial statements and group management reports as well as the other prescribed information pursuant to § 81a (1) Z 9 Börsegesetz 1989-BörseG, BGBl. No 555/1989, which correspond to national and international accounting standards. It shall act

1.

in the case of concrete evidence of a breach of the accounting rules, in accordance with the public interest;

2.

without special occasion.

The FMA may serve as a third party in the performance of its duties.

(2) An audit shall only include the annual financial statements, unless consolidated financial statements have been drawn up by the enterprise. It includes only last year's annual and consolidated financial statements and the half-yearly financial reports of the past and current financial year. It does not refer to the audit opinion of the auditor. An audit has to be maintained if a procedure according to § 201 or § 255 Stock Corporation Act-AktG, BGBl. No 98/1965, or the examination would affect the subject of a special examination in accordance with § § 130 et seq. of the German Stock Corporation Act (AktG).

Audit activity, if there is a test site

§ 3. (1) The FMA shall, if an association is recognized as a test body in accordance with § 8 (1), then carry out examinations itself and to draw upon itself if:

1.

you report that a company refuses to participate in an audit or does not agree with the outcome of the audit, or

2.

there are substantial doubts as to the accuracy of the audit result of the audit body or the proper conduct of the audit by the inspection body, or

3

The examination procedure by the FMA, taking into account the public interest in the correctness of the accounts, is offered in individual cases in compliance with the principles set out in § 18 para. 1 AVG.

(2) The restrictions with regard to the examination subject in § 2 para. 2 shall also apply to this audit activity of the FMA. However, in the cases referred to in paragraph 1 (1) and (2), the annual and consolidated financial statements, as well as any other information from the scope of the audit, may also be included, provided that they have been or would have been the subject of the examination subject.

(3) In carrying out the examination, the FMA may serve the examination office as well as other appropriate facilities and persons. At the request of the FMA, the examination office shall explain the result and the performance of the examination and submit a test report.

(4) Unless there is a test body in accordance with § 8, the FMA must carry out the examinations referred to in § 2 (1) itself, in which case it can serve the execution of appropriate third persons.

Obligation to participate in companies and auditors

§ 4. (1) The enterprise, the members of its institutions, its employees, its entities to be included in the consolidated financial statements, and its auditors shall have the FMA and the persons to whom the FMA is serving in the performance of its tasks, on request, provide information and provide documents to the extent necessary for the purpose of the examination. The obligation to provide information for auditors is limited to facts that have become known to them in the course of the final examination.

(2) The obligation to provide information in accordance with paragraph 1 shall not apply if the persons mentioned were to expose themselves or a family of persons according to § 36a AVG to the risk of prosecution. The FMA has to lecture the pledge about its right to refuse the announcement (§ 157 StPO) of the right to abate. This shall remain unaffected by this obligation.

(3) The persons responsible for the information and presentation of the documents referred to in paragraph 1 shall have the staff of the FMA or the persons appointed by it, insofar as this is necessary for the performance of their duties, during the normal working time. of their land and business premises.

Result of the examination

§ 5. (1) The FMA shall verify that the FMA has been informed of the error, if the FMA has been audited.

(2) The FMA may, in accordance with the public interest, arrange for the accuracy of the financial reporting to be limited by the fact that the company is responsible for the errors detected by the FMA or by the audit body in agreement with the company. including the essential parts of the statement of reasons for the determination according to § 10 paragraph 3 Z 3 to 5 Capital Market Act-KMG, BGBl. No 625/1991 and notice pursuant to Section 10 (4) of the Act on the Law of the Law of the European Union (KMG). At the request of the Company, the FMA may cancel an order after the first sentence, if the publication is appropriate to harm the legitimate interests of the Company.

(3) The FMA does not issue any objections to the examination by the FMA, the FMA shall inform the company accordingly.

Notification duty

§ 6. (1) The FMA has facts which indicate the existence of an infringement of professional duties by the auditor, to report to the Chamber of Economic Scatters. The facts which indicate the existence of an infringement of the rules on the exchange of the stock exchange have to be carried out by the Office and communicated to the stock exchange company. In the event of a reasonable suspicion of the presence of material defects in the quality assurance measures of a statutory auditor, the FMA has to inform the Working Committee for external quality audits. Within four weeks, the FMA as well as the quality control authority must inform the FMA whether and when a special examination according to § 16 paragraph 2 Z 3 of the statutory audit-quality assurance law-A-QSG, BGBl. I No 84/2005. In the case of facts which justify the suspicion of an offence relating to the accounting of a company, an advertisement within the meaning of Section 78 of the StPO may in particular not be displayed if and as long as an examination procedure by the Examination Office or the FMA, and no serious damage to the company or its creditors is to be feared; the notice of errors made in accordance with § 5 (2) shall apply for the purpose of viewing the ad in any case as a damage-inching Measure according to § 78 paragraph 2 Z 2 StPO.

(2) In the performance of its activities under this Federal Act, the FMA gives rise to suspicion that a transaction of money laundering or terrorist financing is used, it shall immediately inform the Authority (Section 6 of the SPG).

Data protection and international cooperation

§ 7. (1) The FMA shall be responsible for cooperation with foreign bodies responsible for investigating possible breaches of the accounting rules of undertakings whose securities are held on a regulated market or on a recognised market or recognised as a securities exchange of a third country. In the context of this cooperation, reciprocal information and data exchange may take place, insofar as it is limited to the extent necessary for cooperation and thereby neither the banking secrecy (§ 38 BWG) nor the tax-related law Secrecy obligation (§ 48a BAO) are violated. Moreover, the granting of information to an authority in a third country is only permitted if there is a level of data protection equivalent to the European data protection rules in that country.

(2) The FMA may cooperate with the competent authorities of Member States of the European Union or States Parties to the Agreement on the European Economic Area with a view to achieving a uniform enforcement of international law. to ensure that accounting rules can be guaranteed across borders. To that end, it may also make available to those bodies the text of decisions taken by them or by the investigating body in individual cases. The text of the decisions may only be made available in an anonymized form.

(3) The FMA has to inform the Examination Office of the international cooperation of the FMA in accordance with paragraphs 1 and 2. For its part, the inspection body is obliged to support the FMA in international cooperation.

2. Section: Examination Office

Legal Form, Recognition and Examination

§ 8. (1) The Federal Minister of Finance, after hearing the Federal Minister of Justice, may, by means of a communication, inform an independent, non-profit-making association on its application as an audit body for compliance with accounting rules by Companies whose securities are admitted to trading on a regulated domestic market (companies). Such an association shall have the name "Österreichische Prüfstelle für invoicing" and may not be bound by any instructions in the performance of its activities.

(2) An association may only be recognized as an inspection body if the statutes of this association provide sufficient assurance for a knowledgable, independent and confidential fulfillment of the tasks of the association and appropriate organizational Arrangements for the audit work are laid down in a Rules of Procedure. Any amendment to the statutes or the Rules of Procedure shall be approved by the Federal Minister of Finance after hearing the Federal Minister of Justice. The modest recognition may be limited to a period of five years, and repeated recognition shall be permitted.

(3) Persons shall not participate in the conduct of the examination in respect of which there are grounds, in particular relations of business, financial or personal nature, in which the concern of partiality exists. In any case, persons who are one of those in § 271 (2) Z 1, 2, 4, 5 or 7 of the Company Code-UGB, BGBl are excluded from the participation. I n ° 120/2005, has been in the last three years.

(4) The Examination Office shall inform the FMA of the conduct of examinations in accordance with § 2 (1) (1) (1) (1).

(5) The FMA may adopt directives on verification by the investigating body in accordance with which it has to proceed. The FMA has to submit proposals to the FMA for this purpose.

The relationship between the audit office and the company

§ 9. (1) If the company participates in an audit by the inspection body, the legal representatives of the company and the other persons whose legal representatives serve in their participation shall be obliged to do so by the audit office. to provide correct and complete information and to provide correct and complete documents, unless the persons mentioned would be exposed to the risk of criminal prosecution in accordance with Section 36a AVG. The inspection body has to lecture the pledge about his right of denial. This shall remain unaffected by this obligation.

(2) The examination office shall inform the company of the result of the examination. If the examination shows that the accounts are defective, it shall give reasons for their decision and give the undertaking the opportunity to submit comments on whether it agrees with the outcome of the audit. is.

Notification, notification obligations and liability of the inspection body

§ 10. (1) The Examination Office shall report to the FMA on:

1.

the refusal of the undertaking concerned to participate in an audit;

2.

the result of the examination and whether the company has agreed to the outcome of the examination.

(2) The employees of the examination office shall be obliged to carry out a conscientious and impartial examination. The audit office and its employees are active in the public interest of reliable and uniform financial reporting on the capital market.

(3) The investigating body shall have facts which justify the suspicion of a criminal offence in connection with the accounting of a company, to report to the FMA. The Chamber of Economic Scatters has to report the facts which give rise to the suspicion of the auditor's existence of a professional breach of the profession.

(4) The Federal Government shall be liable in accordance with the provisions of the Administrative Liability Act-AHG, BGBl, for the damage inflicted by the inspection body. 20/1949. Damage within the meaning of this provision shall be those which have been directly inflicted on legal entities which are subject to the audit activity of the inspection body under this Federal Act. The inspection body and its staff and bodies shall not be liable to the injured party.

(5) If the Federation has replaced an injured party with the damage in accordance with paragraph 4, it may request a refund from the institutions or other servants of the Examination Office in accordance with the provisions of the AHG.

(6) The Examination Office shall support the Federal Government in any appropriate manner in the administrative and restitution procedure provided for in paragraphs 4 and 5 of this Article. It shall, in particular, make available all the information and documents relating to the administrative or restitution procedure and shall ensure that the Federal Government has the knowledge and knowledge of the bodies and staff of the verifier concerned, which can take advantage of the procedural testing activities.

Confidentiality of Obligations

§ 11. (1) Employees of the verifier shall be entitled to the facts and findings disclosed to them in the course of their activities, the secrecy of which is in the interest of a pledge or a third party under that law, in particular business and Personal data, personal data, unauthorised disclosure or use of personal data, even if they are no longer in service or are terminated, shall not be disclosed. This does not apply in the case of legal notification obligations. Notices for the fulfilment of the obligation pursuant to § 10 do not constitute unauthorised disclosure or recovery.

Financing of the audit office

§ 12. (1) The audit body shall draw up an economic plan to be approved by the Federal Minister of Finance for each of the following calendar years, via the necessary financial resources. The estimated costs for the following year will be paid by the individual companies by a fixed amount of EUR 7 500 per calendar year as well as by membership fees of the club members in the amount of EUR 10 000 per club member per calendar year. Calendar year pre-financed. An all-due remaining balance shall be charged to the companies in accordance with their stock market capitalisation by the investigatory authority.

(2) The Examination Office shall be deemed to be an association in accordance with Section 22 (2) of the German Association Act 2002-VerG, BGBl, irrespective of its actual revenue and expenditure. I No 66/2002.

Penalties

§ 13. (1) Any person who does not correctly or incompletely impart information or does not submit a document correctly or does not submit a document correctly or not in its entirety, contrary to § 4 of the FMA or contrary to § 9 of the Examination Office, shall be subject to an administrative surrender and shall be subject to the FMA with a fine of up to 100 000 euros.

(2) The fines imposed by the FMA pursuant to this Federal Act shall be paid to the Federal Government.

Section 3: transitional and final provisions

Linguistic equality

§ 14. Insofar as personal names are only mentioned in male form in this federal law, they refer to women and men in the same way. The gender-specific form is to be used in the application to certain persons.

References and Regulations

§ 15. (1) Where reference is made in this Federal Act to other federal laws, if nothing else is arranged, these are to be applied in their respectively applicable version.

Transitional provision

§ 16. The provisions of this Act shall apply for the first time to financial statements and other prescribed information of that financial year ending after 30 December 2013. Measures for the organisation and financing of the audit office can be taken from the Federal Law Gazette (BGBl). I No 21/2013.

In-force pedals

§ 17. This federal law will enter into force on 1 July 2013.

Enforcement

§ 18. With the enforcement of this federal law is

1.

as regards Section 8 (1) and (2) and Section 12 of the Federal Minister of Finance, in agreement with the Federal Minister for Justice,

2.

in respect of the other provisions of the Federal Minister for Finance.

Evaluation

§ 19. The Federal Minister of Finance has to evaluate the Accounting Control Act no later than 31 December 2015.

Article 2

Amendment of the Financial Market Supervisory Authority Act

The Financial Market Supervisory Authority Act, BGBl. I n ° 97/2001, as last amended by the Federal Law BGBl. I No 97/2012, shall be amended as follows:

1. In § 2 para. 3, after the word group " in the central counterparty law enforcement law-ZGVG, BGBl. I No 97/2012 " the word group ", in the Accounting Control Act-RL-KG, BGBl. I No 21/2013, " inserted.

2. The previous text of § 22c receives the sales designation "(1)" . The following paragraph 2 is added:

" (2) The person affected by the publication or communication may request a review of the legality of the publication or of the information provided pursuant to paragraph 1 in a procedure to be carried out in a modest way at the FMA. The FMA has to make known the introduction of such a method in the same way. If, in the course of the review, the unlawfulness of the publication or information is determined, the FMA shall have the right to issue the publication or the information or, at the request of the person concerned, either to withdraw from the publication or to withdraw from the Remove Internet presence. If a complaint against a communication which has been made known in accordance with paragraph 1 is granted suspensive effect in proceedings before the courts of the courts, the FMA shall disclose this in the same way. The publication or disclosure shall be correct or, at the request of the person concerned, either to be revoked or to be removed from the internet presence if the communication is cancelled. "

4. The following paragraph 21 is added to § 28:

" (21) § 2 para. 3 and § 22c in the version of the Federal Law BGBl. I n ° 21/2013 will enter into force on 1 July 2013. "

Fischer

Faymann