Machine Translated by Google bill the federal government Draft law to strengthen non-financial reporting by companies in their management and group management reports (CSR Directive Implementation Act) A. Problem and goal Increasingly, companies are no longer evaluated and surveyed solely on the basis of their financial data. So-called non-financial information on topics such as respect for human rights, environmental concerns or social concerns form an increasingly important area of corporate communication. In this respect, investors, companies and consumers primarily want more and better information about the business activities of companies in order to decide whether to invest, enter into supply relationships or purchase and use products. This is also due to the increasing media coverage of working and living conditions in third countries, which has made investors, consumers and companies more aware of non-financial issues. At the same time, non-financial factors are already important internal decision-making factors, for example when it comes to risk assessment. This is all the more true as German companies have been an important part of a globalized economy for some time. After initially there was a stronger interdependence of companies, their suppliers and customers within the European single market, there are now global economic relationships that affect many products and services. A product or service is often processed or provided in many different countries in which different legal, social and ecological requirements and standards apply. At the same time, there is a great deal of interest, both in specialist circles and on the part of business, in maintaining the function of accounting, which primarily consists of providing information relevant for corporate management and at the same time for external users and thus reflecting the actual circumstances to convey a corresponding picture of a company's asset, financial and earnings situation and its development with a view to opportunities and risks. At the European level, Directive 2014/95/EU of the European Parliament and of the Council of October 22, 2014 amending Directive 2013/34/EU with regard to the disclosure of non-financial and diversity information by certain large companies and groups (OJ L 330 of 15.11.2014, p. 1; L 369 of 24.12.2014, p. 79), the so-called "CSR Directive", has been adopted. Directive 2014/95/EU must be transposed into German law by December 6, 2016. According to Recital 8 of Directive 2014/95/EU, the new reporting obligations should not lead to excessive administrative burdens for small and medium-sized enterprises. Therefore, under the Directive, reporting entities should not blanket-forward their reporting obligations to small and medium-sized enterprises in their supply chain and their chain of subcontractors. Machine Translated by Google -2- B. Solution Changes to the German Commercial Code (HGB) are required to implement Directive 2014/95/EU. Due to the scope of the changes in relation to the management report and the group management report, however, it makes sense to also address other issues of financial reporting with regard to these reports. C. Alternatives No. D. Non-compliance budget expenditures The draft is primarily aimed at companies in the private sector. Overall, no significant budgetary impact is expected, especially since no new facilities will be created. Additional requirements for material and human resources at the federal level should be compensated for financially and in terms of positions in the respective individual plan. There are no budgetary expenses for the federal states and municipalities. E. Compliance Costs E.1 Compliance costs for citizens There are no compliance costs for citizens, as the regulations are aimed exclusively at companies or administrative authorities. E.2 Compliance costs for business Six new information obligations and four additional requirements for business will be introduced to implement European legal requirements. The new information requirements and other requirements lead to a one-off conversion cost for business of around EUR 35.219 million and additional annual implementation-related compliance costs for business of EUR 10.794 million. This annual compliance cost for the economy arises from the implementation of Directive 2014/95/EU and therefore does not fall within the scope of the "One in, one out" regulation of the federal government. A relief for the economy with regard to the new information obligations results from the use of the option of allowing the reporting companies to publish a separate non- financial report at a later date on the company’s website instead of a non-financial declaration in the management report. The use of this option leads to a relief of approx. EUR 539,700 in terms of annual compliance costs and approx. EUR 3.522 million in terms of the one-off conversion expense. Without using this option, the annual compliance costs for the economy would increase from approx. EUR 10.794 million to approx. EUR 11.3337 million and the one-off conversion costs for business from approx. EUR 35.219 million to approx. EUR 38.741 million. The relief in terms of annual compliance costs is effective as part of the "one in, one out" approach. Machine Translated by Google -3- With regard to the option that is also used of allowing reporting companies to omit disadvantageous information in exceptional cases (§ 289e HGB-E), no significant bureaucratic relief is to be expected, since a company can only rely on the regulation can invoke. Of which bureaucracy costs from information obligations Of the annual compliance costs of around EUR 10.794 million outlined above, a partial amount of around EUR 10.594 million relates to bureaucracy costs from information obligations. E.3 Administrative compliance costs The expansion of the existing administrative offenses with regard to the new reporting obligations leads to annual compliance costs of 60,791.07 euros for the federal government, which can be covered within the framework of the existing staffing. Additional requirements for material and human resources at the federal level should be compensated for financially and in terms of positions in the respective individual plan. There are no compliance costs for the federal states and municipalities. F. Other Costs There are no costs for the social security systems or direct effects on the price level, especially on the consumer price level. Machine Translated by Google -4- Federal government bill Draft law to strengthen non-financial reporting by companies in their management and group management reports (CSR Directive Implementation Act)1) From the ... The Bundestag passed the following law: Article 1 Amendment of the Commercial Code The Commercial Code in the adjusted version published in the Federal Law Gazette Part III, classification number 4100-1, which was last amended by ..., is amended as follows: 1. In § 264 paragraph 3 sentence 1 number 3 letter a, after the comma at the end, the words "which was last amended by Directive 2014/102/EU (OJ L 334 of 21.11.2014, p. 86), “ inserted. 2. In § 285 number 20 in the part of the sentence before letter a, the words "according to § 340e para. 3 sentence 1” deleted. 3. Section 289 is amended as follows: a) In paragraph 1 sentence 5, the words “the legal representatives” are replaced by the words “the members of the body authorized to represent”. b) Paragraph 2 sentence 1 is amended as follows: aa) In number 2, the semicolon after the word "development" is replaced by the word "and". bb) In number 3, the semicolon is replaced by a period. cc) Number 4 is repealed. c) Paragraph 4 is repealed. d) Paragraph 5 becomes Paragraph 4. 4. After Section 289, the following Sections 289a to 289e are inserted: This law serves to implement Directive 2014/95/EU of the European Parliament and 1 ) of the Council of October 22, 2014 amending Directive 2013/34/EU with regard to the disclosure of non-financial and diversity information by certain large companies and groups ( OJ L 330, 15.11.2014, p. 1; L 369, 24.12.2014, p. 79). Machine Translated by Google -5- „§ 289a Supplementary requirements for certain stock corporations and partnerships limited by shares (1) Stock corporations and partnerships limited by shares that use an organized market within the meaning of Section 2 (7) of the Securities Acquisition and Takeover Act for the shares they issue with voting rights must also state in the management report: 1. The composition of the subscribed capital, with a separate listing of the rights and obligations associated with each class and the share in the company capital; 2. Restrictions relating to voting rights or the transfer of shares, even if they may result from agreements between shareholders, to the extent that they are known to the Company's Management Board; 3. direct or indirect shareholdings in the capital, representing 10 percent of the voting rights exceed; 4. the holders of shares with special rights conferring powers of control, and a description of those privileges; 5. the type of control of voting rights if employees hold shares in the capital and do not exercise their control rights directly; 6. the statutory provisions and provisions of the Articles of Association on the appointment and dismissal of members of the Management Board and on amendments to the Articles of Association; 7. the powers of the board of directors, in particular with regard to the possibility of issuing or buying back shares; 8. Significant agreements of the company that are subject to a change of control as a result of a takeover bid and the resulting effects; 9. Compensation agreements of the company that have been made with the members of the Management Board or with employees in the event of a takeover bid. The information according to sentence 1 numbers 1, 3 and 9 can be omitted if they are to be made in the appendix. If information pursuant to sentence 1 is to be provided in the notes, reference must be made to it in the management report. The information according to sentence 1 number 8 can be omitted if they are likely to cause the company a significant disadvantage; the obligation to provide information under other statutory provisions remain (2) A stock corporation listed on the stock exchange must also address the main features of the company's remuneration system for the total remuneration specified in Article 285 number 9 in the management report. If information is also provided in accordance with Section 285 number 9 letter a sentences 5 to 8, this can be omitted from the appendix. Machine Translated by Google -6- § 289b Obligation to make a non-financial declaration; exemptions (1) A corporation must add a non-financial statement to its management report if it meets the following criteria: 1. the corporation meets the requirements of § 267 paragraph 3 sentence 1, 2. the corporation is capital market oriented within the meaning of § 264d and 3. the corporation has more than 500 employees on an annual average busy. Section 267 paragraphs 4 to 5 shall apply accordingly. If the non-financial statement forms a separate section of the management report, the corporation may refer to the non-financial information contained elsewhere in the management report. (2) A corporation within the meaning of paragraph 1 is without prejudice to others Exemption provisions exempt from the obligation to add a non-financial statement to the management report if 1. the corporation is included in the group management report of a parent company based in a member state of the European Union or another signatory state to the Agreement on the European Economic Area and 2. the group management report pursuant to number 1 is prepared in accordance with the national law applicable to the parent company in accordance with Directive 2013/34/EU and contains a non-financial group statement. Sentence 1 applies accordingly if the parent company within the meaning of sentence 1 prepares and publishes a separate non-financial group report in accordance with Section 315b (3) or in accordance with the national law applicable to the parent company in accordance with Directive 2013/34/EU. If a corporation is exempt from the obligation to prepare a non-financial statement in accordance with sentences 1 or 2, it must state this in its management report with an explanation as to which parent company discloses the group management report or the separate non-financial group report and where the report is available in German or English disclosed or published. (3) A corporation within the meaning of paragraph 1 is also then of the The obligation to add a non-financial statement to the management report is waived if the corporation prepares a separate non-financial report for the same financial year outside of the management report and the following requirements are met: 1. The separate non-financial report at least meets the content requirements according to § 289c and 2. the corporation makes the separate non-financial report publicly available through: a) Disclosure together with the management report according to § 325 or b) publication on the website of the corporation no later than six months after the balance sheet date and for at least ten years, Machine Translated by Google -7- if the management report refers to this publication, stating the website. Paragraph 1 sentence 3 and §§ 289d and 289e are to be applied accordingly to the separate non-financial report . (4) If the content of the non-financial statement or the separate non-financial report has been checked, the audit opinion must also be made publicly accessible in the same way as the non-financial statement or the separate non-financial report. § 289c Content of the non-financial statement (1) The business model of the corporation is to be briefly described in the non- financial statement within the meaning of Section 289b. (2) The non-financial statement also refers to at least the following aspects: 1. Environmental issues, whereby the information can relate, for example, to greenhouse gas emissions, water consumption, air pollution, the use of renewable and non-renewable energies or the protection of biological diversity, 2. Worker matters, with the information relating, for example, to measures taken to ensure gender equality, working conditions, implementation of the fundamental Conventions of the International Labor Organization, respect for the rights of workers to be informed and consulted, social dialogue, respect for trade union rights, health or safety at work, 3. Social issues, where information may relate, for example, to dialogue at local or regional level or to measures taken to ensure the protection and development of local communities, 4. respect for human rights, whereby the information can relate, for example, to the avoidance of human rights violations, and 5. Combating corruption and bribery, whereby the information can relate, for example, to the existing instruments for combating corruption and bribery. (3) With regard to the aspects mentioned in paragraph 2, the non-financial statement must contain the information that is necessary for an understanding of the course of business, the business result, the position of the corporation and the effects of its activities on the aspects mentioned in paragraph 2 are required, including 1. a description of the concepts pursued by the corporation , including the due diligence processes applied by the corporation, Machine Translated by Google -8- 2. the results of the concepts according to number 1, 3. the main risks associated with the corporation’s own operations that are highly likely to have or will have serious adverse effects on the aspects referred to in paragraph 2 , and how the corporation handles those risks, 4. the main risks that are linked to the business relationships of the corporation, its products and services and that are very likely to have or will have serious negative effects on the aspects mentioned in paragraph 2 , insofar as the information is relevant and the reporting about these risks is proportionate, as well as the handling of these risks by the corporation, 5. the most important non-financial performance indicators that are important for the business activities of the corporation, 6. as far as it is necessary for understanding, references to the amounts reported in the annual financial statements and additional explanations thereto. (4) If the capital company does not have a concept with regard to one or more of the aspects mentioned in paragraph 2, it has clearly and justified this in the non- financial declaration instead of the information related to the respective aspect according to paragraph 3 numbers 1 and 2 to explain. § 289d use of frameworks The corporation can use national, European or international frameworks to prepare the non-financial statement. In these cases, the declaration must indicate which framework was used. § 289e Omission of adverse information (1) As an exception, the corporation does not have to include any information on future developments or matters that are being negotiated in the non-financial statement if 1. According to the reasonable commercial assessment of the members of the authorized representative body of the corporation, the information is likely to cause the corporation a significant disadvantage, and 2. the omission of the information does not prevent a true and balanced understanding of the course of business, the business result, the situation of the corporation and the effects of its activities. (2) If a corporation makes use of paragraph 1 and the reasons for not including the information after the publication of the non-financial statement no longer apply, the information shall be included in the subsequent non-financial statement." Machine Translated by Google -9- 5. The previous Section 289a becomes Section 289f and is amended as follows: a) Paragraph 2 is amended as follows: aa) In number 5 letter b, the period at the end is replaced by a semicolon puts. bb) The following number 6 is added: 6. "In the case of stock corporations within the meaning of paragraph 1, which are large corporations pursuant to Section 267 paragraph 3 sentence 1 and paragraphs 4 to 5, a description of the diversity concept that applies with regard to the composition of the body authorized to represent and the supervisory board with regard to Aspects such as age, gender, educational or professional background is pursued, as well as the goals of this diversity concept, the way it is implemented and the results achieved in the financial year.” b) the following paragraph 5 is added: (3) "If a company pursuant to paragraph 2 number 6, also in conjunction with paragraph 3, does not pursue a diversity concept, it must explain this in the corporate governance statement." 6. In Section 291 subsection 2 sentence 1 number 2 and Section 292 subsection 1 number 1 letter b, the statement “Section 315a subsection 1” is replaced by the statement “Section 315e subsection 1”. 7. Section 294 paragraph 3 is amended as follows: a) In sentence 1, a comma and the words “separate non-financial reports” are inserted after the word “management reports” and a comma and the words “separate non-financial group reports” are inserted after the word “group management reports”. b) In sentence 2, the word “and” after the word “financial statement” is replaced by a comma and the words “and the separate non-financial group report” are inserted after the word “group management report”. 8. In section 314 subsection 1 number 12 in the part of the sentence before letter a, the words “according to section 340e subsection 3 sentence 1” are deleted. 9. Section 315 is amended as follows: a) Paragraph 1 is amended as follows: aa) Sentence 4 is repealed. bb) In the new sentence 5, the words “the legal representatives” are replaced by the words “the members of the body authorized to represent” and the words “of sentence 5” are replaced by the words “of sentence 4”. b) Paragraph 2 is amended as follows: aa) In number 2, the semicolon at the end is replaced by the word "and". bb) In number 3, the semicolon at the end is replaced by a period. cc) Numbers 4 and 5 are repealed. Machine Translated by Google - 10 - dd) The following sentence is added: "If the parent company is a stock corporation, it must refer in the group management report to the information to be provided in accordance with Section 160 Paragraph 1 Number 2 of the German Stock Corporation Act." (c) after paragraph 2, the following paragraphs 3 and 4 are inserted: (3) "Paragraph 1 sentence 3 applies accordingly to non-financial performance indicators, such as information on environmental and employee matters, insofar as they are important for understanding the course of business or the situation of the group. (4) If the parent company or a subsidiary included in the consolidated financial statements is capital market oriented within the meaning of Section 264d, the group management report must also address the main features of the internal control and risk management system with regard to the group accounting process. d) The previous paragraph 3 becomes paragraph 5. e) The previous paragraphs 4 and 5 are repealed. 10. After section 315, the following sections 315a to 315d are inserted: „§ 315a Supplementary regulations for certain stock corporations and partnerships limited by shares (1) Parent companies (Section 290) that operate an organized market within the meaning of Section 2 Paragraph 7 of the Securities Acquisition and Takeover Act through voting shares issued by them must also state in the group management report: 1. The composition of the subscribed capital, with a separate listing of the rights and obligations associated with each class and the share in the company capital; 2. Restrictions relating to voting rights or the transfer of shares, even if they may result from agreements between shareholders, insofar as the restrictions are known to the Management Board of the company; 3. direct or indirect shareholdings in the capital, representing 10 percent of the voting rights exceed; 4. the holders of shares with special rights conferring powers of control, and a description of those privileges; 5. the type of control of voting rights if employees hold shares in the capital and do not exercise their control rights directly; 6. the statutory provisions and provisions of the Articles of Association on the appointment and dismissal of members of the Management Board and on amendments to the Articles of Association; Machine Translated by Google - 11 - 7. the powers of the board of directors, in particular with regard to the possibility of issuing or buying back shares; 8. Significant agreements of the parent company that are subject to a change of control as a result of a takeover bid and the resulting effects; 9. Compensation agreements of the parent company that have been made with the members of the Management Board or with employees in the event of a takeover bid. The information according to sentence 1 numbers 1, 3 and 9 can be omitted if they are to be made in the notes to the consolidated financial statements. If information is to be provided in accordance with sentence 1 in the notes to the consolidated financial statements, reference must be made to it in the group management report. The information according to sentence 1 number 8 can be omitted if they are likely to cause the parent company a significant disadvantage; the obligation to provide information under other statutory provisions remains unaffected. (2) If the parent company is a public limited company listed on the stock exchange, the group management report must also address the main features of the remuneration system for the total remuneration specified in Section 314 (1) number 6. If information is also provided in accordance with section 314 paragraph 1 number 6 letter a sentences 5 to 8, this can be omitted in the notes to the consolidated financial statements. § 315b Obligation to make a non-financial group statement; exemptions (1) A corporation that is a parent company (section 290) has to add a non-financial group statement to its group management report if the following criteria are met: 1. the corporation is capital market oriented within the meaning of § 264d, 2. the following applies to the companies to be included in the consolidated financial statements: a) they do not meet the requirements set out in Section 293 (1) sentence 1 number 1 or 2 for a size-related exemption and b) they have a total of more than 500 employees on average over the year employed. Section 267 subsections 4 to 5 and Section 298 subsection 2 shall apply accordingly. If the group non-financial statement forms a separate section of the group management report, the corporation may refer to the non-financial information contained elsewhere in the group management report. (2) A parent company within the meaning of paragraph 1 is without prejudice to others Exemption provisions exempt from the obligation to add a non-financial group statement to the group management report if 1. the parent company is also a subsidiary that is included in the group management report of another parent company with its registered office in a member state of the European Union or another state party to the Agreement on the European Economic Area, and Machine Translated by Google - 12 - 2. the group management report pursuant to number 1 is prepared in accordance with the national law applicable to the parent company in accordance with Directive 2013/34/ EU and contains a non-financial group statement. Sentence 1 applies accordingly if the other parent company within the meaning of sentence 1 prepares and publishes a separate non-financial group report in accordance with paragraph 3 or in accordance with the national law applicable to the parent company in accordance with Directive 2013/34/EU. If a parent company is exempted from the obligation to prepare a non-financial group statement in accordance with sentences 1 or 2, it must state this in its group management report with an explanation of which other parent company discloses the group management report or the separate non-financial group report and where the report is in German or is disclosed or published in the English language. (3) A parent company within the meaning of paragraph 1 is also The obligation to add a non-financial group statement to the group management report is waived if the parent company prepares a separate non-financial group report for the same fiscal year outside of the group management report and meets the following requirements: 1. The separate non-financial group report at least meets the content requirements according to § 315c in connection with § 289c and 2. the parent company prepares the separate non-financial group report publicly available through: a) Disclosure together with the group management report according to § 325 or b) Publication on the website of the parent company no later than six months after the balance sheet date and for at least ten years, provided that the group management report refers to this publication , stating the website . Paragraph 1 sentence 3 and §§ 289d and 289e are to be applied accordingly to the separate non-financial group report. (4) If the content of the non-financial group statement or the separate non-financial group report has been checked, the audit opinion must also be made publicly accessible in the same way as the non-financial group statement or the separate non-financial group report. § 315c Content of the non-financial group statement (1) Section 289c shall apply accordingly to the content of the non-financial group statement. (2) Section 289c (3) applies with the proviso that the information required to understand the course of business, the business result, the position of the group and the effects of its activities on the aspects specified in Section 289c (2) must be provided . (3) Sections 289d and 289e shall apply accordingly. Machine Translated by Google - 13 - § 315d Group declaration on corporate governance A parent company that is a company within the meaning of Section 289f (1) or (3) must prepare a corporate governance declaration for the group and include it as a separate section in the group management report. § 289f is to be applied accordingly." 11. The previous § 315a becomes § 315e. 12. Section 317 subsection 2 sentence 4 is replaced by the following sentences: "With regard to the requirements of Sections 289b to 289e and Sections 315b and 315c, it is only necessary to check whether the non-financial statement or the separate non-financial report, the non-financial group statement or the separate non-financial group report has been submitted. In the case of Section 289b (3) sentence 1 number 2 letter b, an additional audit must be carried out by the same auditor six months after the balance sheet date to determine whether the separate non-financial report or the separate non-financial group report was submitted; Section 316 (3) sentence 2 applies accordingly with the proviso that the auditor's report only needs to be supplemented if the separate non-financial report or the separate non-financial group report has not been submitted within six months of the reporting date. The examination of the information according to § 289f paragraph 2 and § 315d is to be limited to whether the information was provided. " 13. Section 320 is amended as follows: a) In paragraph 1 sentence 1, the word “and” is replaced by a comma and the words “and the separate non-financial report” are inserted after the word “management report”. b) In paragraph 3 sentence 1, a comma and the words “the separate non-financial group report” are inserted after the word “group management report” and a comma and the words “the separate non-financial reports” are inserted after the word “management reports”. 14. Section 325 is amended as follows: a) In paragraph 1 sentence 1 in the part of the sentence before number 1 and in paragraph 2, the words “the legal representatives” are replaced by the words “the members of the body authorized to represent”. b) Paragraph 2a is amended as follows: aa) In sentence 1, the statement “Section 315a (1)” is replaced by the statement “Section 315e (1)”. bb) Sentence 4 is worded as follows: “The obligation to disclose a management report remains unaffected; the management report pursuant to Section 289 must also refer to the individual financial statements pursuant to sentence 1 to the extent required.” c) In paragraph 3, the words "the legal representatives" are replaced by the words "the Members of the body authorized to represent”. 15. Section 331 is preceded by the following heading: Machine Translated by Google - 14 - "First title Criminal penalties and fines”. 16. Section 331 is amended as follows: a) In number 1, the words “including the non-financial statement, in the separate non- financial report” are inserted after the word “management report”. b) In number 2, the words “including the non-financial group statement, in the separate non-financial group report” are inserted after the word “group management report”. c) In number 3a, the statement “Section 315 (1) sentence 6” is replaced by the words “Section 315 (1) sentence 5”. 17. Section 334 paragraph 1 is amended as follows: a) Numbers 3 and 4 are worded as follows: 3." When preparing the management report or the preparation of a separate non- financial report of a provision of §§ 289 to 289b paragraph 1, §§ 289c, 289d, 289e paragraph 2, also in connection with § 289b paragraph 2 or 3, or § 289f about the content of the management report or the separate non-financial report, 4. when preparing the group management report or the preparation of a separate non- financial group report, a provision of sections 315 to 315b (1), section 315c, also in conjunction with section 315b (2) or (3), or section 315d on the content of the group management report or the separate non-financial group report." b) Paragraph 3 is replaced by the following paragraphs 3 to 3b: (3) The administrative offense can be punished with a fine of up to fifty thousand euros. If the capital company is capital market-oriented within the meaning of Section 264d, the fine in the cases referred to in paragraph 1 is at most the higher of the following amounts: 1. two million euros or 2. twice the economic advantage derived from the administrative offense, whereby the economic advantage includes gains made and losses avoided and can be estimated. (3a) If a fine pursuant to Section 30 of the Administrative Offenses Act is imposed on a capital market-oriented corporation within the meaning of Section 264d in the cases of subsection 1 , this fine shall not exceed the highest of the following amounts: 1. ten million euros, 2. five percent of the total annual turnover that the corporation achieved in the financial year preceding the official decision or Machine Translated by Google - 15 - 3. Twice the economic advantage derived from the administrative offence, whereby the economic advantage includes gains made and losses avoided and can be estimated. (3b) Total turnover within the meaning of paragraph 3 sentence 3 number 2 is the amount of sales according to § 277 paragraph 1 or the amount of net sales according to the national law applicable to the company in accordance with Article 2 number 5 of the Directive 2013/ 34/EU. If the corporation is a parent company or a subsidiary within the meaning of Section 290, the total turnover in the consolidated financial statements of the parent company, which is prepared for the largest group of companies, is decisive instead of the total turnover of the corporation. If the consolidated financial statements for the largest group of companies are not prepared in accordance with the provisions specified in sentence 1, the total turnover is to be determined in accordance with the items in the consolidated financial statements that are comparable to the sales revenues. If annual or consolidated financial statements for the relevant financial year are not available, the annual or consolidated financial statements for the immediately preceding financial year shall apply; if this is also not available, the total turnover can be estimated.” 18. The following heading is inserted after § 334: "Second title fines”. 19. Section 335 is amended as follows: a) In paragraph 1 sentence 1, in the part of the sentence according to number 2, the statement "§ 13e paragraph 2 sentence 4 number 3" is replaced by the words "§ 13e paragraph 2 sentence 5 number 3". b) In paragraph 1a sentence 1 number 2, the words “legal person or association” are replaced by the word “corporation”. c) Paragraph 1b sentence 2 is worded as follows: "If the corporation is a parent company or a subsidiary within the meaning of Section 290, instead of the total turnover of the corporation, the total turnover in the consolidated financial statements of the parent company, which is prepared for the largest group of companies, is decisive." 20. The following heading is inserted after § 335a: "Third title Common provisions for criminal, administrative fine and regulatory fine procedures”. 21. Section 336 subsection 2 sentence 1 is amended as follows: a) In number 2, the entry "289" is replaced by the entry "289e". b) In number 3, the statement “Section 289a paragraph 4” is replaced by the statement “Section 289f paragraph clause 4". Machine Translated by Google - 16 - 22. The following paragraphs 1a and 1b are inserted after Section 340a paragraph 1: “(1a) A credit institution must add a non-financial statement to its management report if it is considered large in analogous application of Section 267 (3) sentence 1 and (4) to (5) and employs more than 500 employees on an annual average. If the non-financial statement forms a separate section of the management report, the credit institution may refer to the non-financial information contained elsewhere in the management report. Section 289b paragraphs 2 to 4 and sections 289c to 289e shall apply accordingly. (1b) A credit institution that has to prepare a corporate governance declaration pursuant to subsection 1 in conjunction with Section 289f subsection 1 must include information pursuant to Section 289f subsection 2 number 6 therein if it applies mutatis mutandis Section 267 subsection 3 sentence 1 and Paragraphs 4 to 5 are considered large.” 23. Section 340i is amended as follows: a) Paragraph 2 is amended as follows: aa) In sentence 3, the entry "315a" is replaced by the entry "315e". bb) Sentence 4 is worded as follows: “Insofar as Section 315e Paragraph 1 refers to Section 314 Paragraph 1 Number 6 Letter c, Section 34 Paragraph 2 Number 2 in conjunction with Section 37 of the Bank Accounting Ordinance in the version of the notice of December 11, 1998 (Federal Law Gazette . I p. 3658), which was last amended by Article 8 paragraph 13 of the law of 17 July 2015 (Federal Law Gazette I p. 1245), in the currently valid version." cc) In sentence 5, the statement “Section 315a (1)” is replaced by the statement “Section 315e (1)”. b) the following paragraphs 5 and 6 are added: "(5) A credit institution that is a parent company (section 290) must add a non-financial group statement to the group management report if the following companies are to be included in the consolidated financial statements characteristics apply: 1. they do not meet the requirements for a size-related exemption set out in Section 293 (1) sentence 1 number 1 or 2 and 2. they have a total of more than 500 employees on average over the year employed. Section 267 subsections 4 to 5, Section 298 subsection 2, Section 315b subsections 2 to 4 and Section 315c shall be applied accordingly. If the group non-financial statement forms a separate section of the group management report, the bank may refer to the non-financial information contained elsewhere in the group management report. (6) A credit institution that has to prepare a corporate governance statement pursuant to subsection 1 in conjunction with section 315d must include information pursuant to section 315d in conjunction with section 289f subsection 2 number 6 therein if it is to apply section 267 subsection 3 sentence 1 and paragraphs 4 to 5 is considered large." Machine Translated by Google - 17 - 24. Section 340n is amended as follows: a) Paragraph 1 numbers 3 and 4 is worded as follows: 3." When preparing the management report or the preparation of a separate non- financial report of a provision of §§ 289, 289a, § 340a paragraph 1a, also in connection with § 289b paragraph 2 or 3 or with §§ 289c, 289d or Section 289e (2) or Section 340a (1b) in conjunction with Section 289f on the content of the management report or the separate non-financial report, 4. in the preparation of the group management report or the preparation of a separate non-financial group report of a provision of Sections 315, 315a, Section 340i (5), also in conjunction with Section 315b (2) or (3) or Section 315c, or Section 340i (6). in connection with Section 315d on the content of the group management report or the separate non-financial group report.” b) Paragraph 3 is replaced by the following paragraphs 3 to 3b: (3) The administrative offense can be punished with a fine of up to fifty thousand euros. If the credit institution is capital market oriented within the meaning of section 264d, the fine in the cases of subsection 1 is at most the higher of the following amounts: 1. two million euros or 2. twice the economic advantage derived from the administrative offense, whereby the economic advantage includes gains made and losses avoided and can be estimated. (3a) If a fine pursuant to Section 30 of the Administrative Offenses Act is imposed on a credit institution that is capital market-oriented within the meaning of Section 264d in the cases of subsection 1 , this fine shall not exceed the highest of the following amounts: 1. ten million euros, 2. five percent of the total annual turnover that the bank achieved in the financial year preceding the official decision or 3. Twice the economic advantage derived from the administrative offence , whereby the economic advantage includes gains made and losses avoided and can be estimated. 3b. Total turnover shall be the amount resulting from the national law applicable to the credit institution in accordance with Article 27, points 1, 3, 4, 6 and 7 or Article 28, points B1, B2, B3, B4 and B7, instead of the amount of the sales revenue Council Directive 86/635/EEC of 8 December 1986 on the annual accounts and consolidated accounts of banks and other financial institutions (OJ L 372, 31.12.1986, p. 1; L 316, 23.11.1998, p . 51), which was last amended by Directive 2006/46/EC (OJ L 224 of 16.8.2006, p. 1), the resulting total amount, less sales tax and other taxes levied directly on this income, shall be decisive. If the credit institution is a parent company or a subsidiary within the meaning of Section 290, the respective total amount in the consolidated financial statements of the parent company that is prepared for the largest group of companies is decisive instead of the total turnover of the credit institution. Will the group Machine Translated by Google - 18 - If the financial statements for the largest group of companies are not prepared in accordance with the provisions specified in sentence 1, the total turnover is to be determined in accordance with the items in the consolidated financial statements that are comparable to the items covered by sentence 1. If annual or consolidated financial statements are not available for the relevant financial year, the annual or consolidated financial statements for the immediately preceding financial year shall apply; if this is not available either, the total turnover can be estimated.” 25. The following paragraphs 1a and 1b are inserted after Section 341a paragraph 1: “(1a) An insurance company must add a non-financial statement to its management report if it is considered large in analogous application of Section 267 (3) sentence 1 and (4) to (5) and employs more than 500 people on average over the year. If the non-financial statement forms a separate section of the management report, the insurance company may refer to the non-financial information contained elsewhere in the management report. Section 289b paragraphs 2 to 4 and sections 289c to 289e shall apply accordingly. (1b) An insurance company that has to prepare a corporate governance statement pursuant to subsection 1 in conjunction with Section 289f subsection 1 must include information pursuant to Section 289f subsection 2 number 6 therein if it is applying Section 267 subsection 3 sentence 1 and paragraphs 4 to 5 is considered large.” 26. Section 341j is amended as follows: a) In paragraph 1 sentence 4, the entry "315a" is replaced by the entry "315e". puts. b) the following paragraphs 4 and 5 are added: (4) "An insurance company that is a parent company (section 290) has to add a non- financial group statement to the group management report if the following characteristics apply to the companies to be included in the consolidated financial statements: 1. they do not meet the requirements for a size-related exemption set out in Section 293 (1) sentence 1 number 1 or 2 and 2. they have a total of more than 500 employees on average over the year employed. Section 267 subsections 4 to 5, Section 298 subsection 2, Section 315b subsections 2 to 4 and Section 315c shall be applied accordingly. If the non-financial statement forms a separate section of the group management report, the insurance company may refer to the non- financial information contained elsewhere in the group management report. (5) An insurance company that has to prepare a corporate governance statement pursuant to subsection 1 in conjunction with Section 315d must include information pursuant to Section 315d in conjunction with Section 289f subsection 2 number 6 therein if it is to apply Section 267 Paragraph 3 sentence 1 and paragraphs 4 to 5 is considered large. " 27. Section 341n is amended as follows: a) Paragraph 1 numbers 3 and 4 is worded as follows: Machine Translated by Google - 19 - 3." When preparing the management report or the preparation of a separate non-financial report of a provision of §§ 289, 289a, § 341a paragraph 1a, also in connection with § 289b paragraph 2 or 3 or with §§ 289c, 289d or Section 289e (2) or Section 341a (1b) in conjunction with Section 289f on the content of the management report or the separate non-financial report, 4. in the preparation of the group management report or the preparation of a separate non-financial group report of a provision of sections 315, 315a, section 341j (4), also in conjunction with section 315b (2) or (3) or section 315c, or section 341j (5). in connection with § 315d on the content of the group management report or the separate non-financial group report”. b) Paragraph 3 is replaced by the following paragraphs 3 to 3b: (3) The administrative offense can be punished with a fine of up to fifty thousand euros. If the insurance company is capital market oriented within the meaning of section 264d, the fine in the cases of subsection 1 is at most the higher of the following amounts: 1. two million euros or 2. twice the economic advantage derived from the administrative offense, whereby the economic advantage includes gains made and losses avoided and can be estimated. (3a) If a fine pursuant to Section 30 of the Administrative Offenses Act is imposed on an insurance company that is capital market-oriented within the meaning of Section 264d in the cases referred to in subsection 1 , this fine shall not exceed the highest of the following amounts: 1. ten million euros, 2. five percent of the total annual turnover that the insurance company achieved in the financial year preceding the official decision or 3. Twice the economic advantage derived from the administrative offence, whereby the economic advantage includes gains made and losses avoided and can be estimated. (3b) Total turnover is the amount resulting from the national law applicable to the insurance undertaking in accordance with Article 63 of Council Directive 91/674/EEC of 19 December 1991 on the annual accounts and consolidated accounts of insurance undertakings, instead of the amount of turnover (OJ L 374 of 31.12.1991, p. 7), which was last amended by Directive 2006/46/EC (OJ L 224 of 16.8.2006, p. 1), result in the total amount, minus the sales tax and other taxes levied directly on this income. If the insurance company is a parent company or a subsidiary within the meaning of Section 290, the respective total amount in the consolidated financial statements of the parent company, which is prepared for the largest group of companies, is decisive instead of the total turnover of the insurance company. If the consolidated financial statements for the largest group of companies are not prepared in accordance with the provision mentioned in sentence 1, the total turnover is to be determined in accordance with the items in the consolidated financial statements that are comparable to the items covered by sentence 1. Is an annual or consolidated financial statement for the Machine Translated by Google - 20 - relevant financial year is not available, the annual or consolidated financial statements for the immediately preceding financial year shall apply; if this is also not available, the total turnover can be estimated.” 28. In Section 342 subsection 1 sentence 1 number 4, the indication “Section 315a subsection 1” is replaced by the Anga be "Section 315e Paragraph 1" replaced. Article 2 Amendment of the Introductory Act to the Commercial Code The Introductory Act to the Commercial Code in the revised version published in the Federal Law Gazette Part III, classification number 4101-1, which was last amended by ..., is amended as follows: 1. Article 75 is amended as follows: a) In paragraph 1 sentence 2, the entry “23. July 2015” by adding “22. July 2015” replaced. b) In paragraph 2 sentence 2, the word "ending" is replaced by the word "beginning". puts. 2. The following … [insert: next free section with number designation when promulgating] section is added: "... [insert: next free section with counting designation in the proclamation] section Transitional provision to the CSR Directive Implementation Act Article … [insert: next free article with count designation when promulgating] Sections 264, 285, 289 to 289f, 291, 292, 294, 314 to 315e, 317, 320, 325, 331, 334, 335, 336, 340a, 340i, 340n, 341a, 341j, 341n and 342 of the Commercial Code in the version of the CSR Directive Implementation Act of ... [insert: date of issue and reference] are to be applied for the first time to annual and consolidated financial statements, management reports and group management reports for the financial year beginning after December 31, 2016. The provisions referred to in sentence 1 in the version valid up to ... [insert: date of the day before the day of entry into force pursuant to Article 10 of this Act] shall apply for the last time to management and group management reports for the financial year beginning before January 1, 2017. " Machine Translated by Google - 21 - Article 3 Amendment of the Business Register Ordinance The company register ordinance of February 26, 2007 (BGBl. I p. 217), which was last amended by Article 191 of the ordinance of August 31, 2015 (BGBl. I p. 1474), is amended as follows: 1. Section 10 paragraph 2 sentence 2 is worded as follows: "If a micro-corporation or micro-cooperative submits its balance sheet to the operator of the Federal Gazette in a different file format that is not suitable for archiving the data, the latter converts the data on behalf of the company." 2. Section 15 paragraph 1 sentence 1 is worded as follows: “The operator can use the data within the meaning of Section 1 Paragraph 1 Sentence 1, with the exception of the balance sheets of micro-capital companies or micro-cooperatives only deposited under Section 326 Paragraph 2 of the Commercial Code, to offer further paid information services that go beyond this regulation; In particular, it can provide for automated information about newly made available data.” Article 4 Amendment of the Securities Trading Act The Securities Trading Act in the version published on September 9, 1998 (Federal Law Gazette I p. 2708), which was last amended by ..., is amended as follows: 1. The following information is added to the table of contents: "Section 50 transitional regulation to the CSR Directive Implementation Act". 2. In Section 37w Paragraph 3 Clause 3, the statement “Section 315a Paragraph 1” is replaced by the statement “Section 315e Paragraph 1”. 3. § 37y is amended as follows: a) In number 1, the statement “Section 315 (1) sentence 6” is replaced by the words “Section 315 (1) sentence 5”. b) In number 2 sentence 2, the statement “Section 315a (1)” is replaced by the statement “Section 315e (1)”. 4. The following § 50 is added: Machine Translated by Google - 22 - „§ 50 Transitional regulation to the CSR Directive Implementation Act Sections 37w and 37y in the version of the CSR Directive Implementation Act of ... [insert: date of issue and reference] are to be applied for the first time to management reports and group management reports that relate to a financial year beginning after December 31, 2016. Sections 37w and 37y shall remain applicable to management reports and group management reports relating to financial years beginning before January 1, 2017 until ... [insert: date of the day before the effective date pursuant to Article 10 of this Act]. version applicable.” Article 5 Amendment of the Publicity Act The Publicity Act of August 15, 1969 (BGBl. I p. 1189; 1970 I p. 1113), which was last amended by Article 4 of the law of May 10, 2016 (BGBl. I p. 1142), is amended as follows : 1. In Section 11 Paragraph 6 Sentence 1 Number 2 and Sentence 2, the statement “Section 315a” is replaced the statement "§ 315e" replaced. 2. In Section 13 Paragraph 1 Sentence 2, the entry “50,000 euros” is replaced by the entry “100,000 euros” replaced. 3. In Section 17 Number 1a, the statement “Section 315a Para. 1” is replaced by the statement “Section 315e Para clause 1". 4. In Section 20 Paragraph 1 Number 4, the statement “Section 315 Paragraph 1” is replaced by the words “Section 315 Paragraph 1, also in connection with paragraph 3,” replaced. 5. The following paragraph 7 is added to Article 22: (7) "§§ 11, 13, 17 and 20 in the version of the CSR Directive Implementation Act of ... [insert: date of issue and reference] are for the first time on annual and consolidated financial statements, management and group management reports for after December 31 applicable to fiscal years beginning in 2016. The provisions referred to in sentence 1 in the version valid up to ... [insert: date of the day before the date of entry into force according to Article 10 of this Act] are to be applied for the last time to management and group management reports for the financial year beginning before January 1, 2017." Article 6 Amendment of the Stock Corporation Act The Stock Corporation Act of September 6, 1965 (Federal Law Gazette I p. 1089), which was last amended by ... ge changed will be changed as follows: 1. The following sentence is added to Section 170 (1): Machine Translated by Google - 23 - "According to sentence 1, the separate non-financial report (§ 289b of the German Commercial Code) and the separate non-financial group report (§ 315b of the German Commercial Code) must also be submitted, if they have been prepared." 2. The following sentence is added to Section 171 (1): "The Supervisory Board must also examine the separate non-financial report (Section 289b of the German Commercial Code) and the separate non-financial group report (Section 315b of the German Commercial Code), if they have been prepared." 3. In Section 176 Paragraph 1 Clause 1, the statement “Section 289 Paragraph 4, Section 315 Paragraph 4” is replaced by the Wör ter "§ 289a paragraph 1 and § 315a paragraph 1" replaced. 4. In Section 237 Paragraph 3 Number 2, the words "another revenue reserve" replaced by the words "a discretionary reserve". 5. Section 283 number 10 is worded as follows: 10. "The presentation and examination of the management report, a separate non-financial report and consolidated financial statements, a group management report and a separate non-financial group report;". Article 7 Amendment of the Introductory Act to the Stock Corporation Act Before the second section of the Introductory Act to the Stock Corporation Act of September 6, 1965 (Federal Law Gazette I p. 1185), which was last amended by ..., the following § 26 ... [insert: next free letter suffix] is inserted: "§ 26... [insert: when pronouncing the next free letter suffix] Transitional regulation to the CSR Directive Implementation Act Sections 170, 171, 176, 237 and 283 of the German Stock Corporation Act in the version of the CSR Directive Implementation Act of ... [insert: date of issue and reference] are to be applied for the first time to management and group management reports that relate to a business after December 31, 2016 refer to the beginning of the financial year. For management reports and group management reports relating to financial years beginning before January 1, 2017, the provisions referred to in sentence 1 shall remain in force until ... [insert: date of the day before the effective date pursuant to Article 10 of this Act]. version applicable.” Article 8 Amendment of the Cooperative Law The Cooperatives Act in the version published on October 16, 2006 (BGBl. I p. 2230), which was last amended by Article 10 of the law of May 10, 2016 (BGBl. I p. 1142), is amended as follows: Machine Translated by Google - 24 - 1. The following information is added to the table of contents: "§ 170 Transitional regulation to the CSR Directive Implementation Act". 2. The following paragraph 1b is inserted after Article 38 paragraph 1a: "(1b) The supervisory board must also examine the separate non-financial report (section 289b of the German Commercial Code), if it has been prepared." 3. The following § 170 is added: „§ 170 Transitional regulation to the CSR Directive Implementation Act Section 38 in the version of the CSR Directive Implementation Act of ... [insert: date of issue and reference] is to be applied for the first time to management reports and group management reports that relate to a financial year beginning after December 31, 2016. Section 38 in the version valid up to ... [insert: date of the day before the effective date pursuant to Article 10 of this Act] shall remain applicable to management reports and group management reports relating to financial years beginning before January 1, 2017." Article 9 Amendment of Other Federal Law (1) In Article 23 paragraph 1 sentence 2 and paragraph 2 sentence 2 of the law for the equal participation of women and men in management positions in the private sector and in the public service of April 24, 2015 (Federal Law Gazette I p. 642), respectively the statement "§ 289a" replaced by the statement "§ 289f". (2) The Transparency Directive Implementation Ordinance of March 13, 2008 (BGBl. I p. 408), which was last amended by Article 14 of the law of November 20, 2015 (BGBl. I p. 2029), is amended as follows: 1. In § 10, in the part of the sentence before number 1, the statement "§ 315a Para. 1" is replaced by the An replaced by “Section 315e Paragraph 1”. 2. In Section 12, the words “Section 315 subsection 1 sentences 1 to 5” are replaced by the words “Section 315 subsection 1 sentences 1 to 4 and subsection 3”. 3. The following paragraph 3 is added to Article 23: (3) "§§ 10 and 12 in the version of the CSR Directive Implementation Act of ... [insert: date of issue and reference] are for the first time on annual and consolidated financial statements, management and group management reports for the financial year beginning after December 31, 2016 apply. Sections 10 and 12 in the version valid up to ... [insert: date of the day before the date of entry into force pursuant to Article 10 of this Act] shall apply for the last time to management and group management reports for the financial year beginning before January 1, 2017. " Machine Translated by Google - 25 - (3) The Investments Act of December 6, 2011 (BGBl. I p. 2481), which was last amended by Article 4 of the law of December 22, 2015 (BGBl. I p. 2565), is amended as follows: 1. In Section 23 Paragraph 3 Clause 2, the words “Section 325 Paragraph 1 Clause 6” are replaced by the words "§ 325 paragraph 1 sentence 2" replaced. 2. The following paragraph 14 is added to Article 32: „ (14) Section 23 in the version of the CSR Directive Implementation Act of ... [insert: date of issue and source] are to be applied for the first time to annual and consolidated financial statements, management reports and group management reports for the financial year beginning after December 31, 2016. Section 23 in the version valid up to ... [insert: date of the day before the date of entry into force pursuant to Article 10 of this Act] shall apply for the last time to management reports and group management reports for the financial year beginning before January 1, 2017, without prejudice to paragraph 13. " (4) The REIT Act of May 28, 2007 (BGBl. I p. 914), which was last amended by Article 11 of the Act of June 22, 2011 (BGBl. I p. 1126), is amended as follows: 1. In Section 12, Paragraph 1, Clause 1 and Section 15, Clause 2, the statement “Section 315a” is replaced by the statement “Section 315e”. 2. The following paragraph 12 is added to Article 23: „(12) §§ 12 and 15 in the version of the CSR Directive Implementation Act of ... [insert: date of issue and source] are to be applied for the first time to annual and consolidated financial statements, management reports and group management reports for the financial year beginning after December 31, 2016. Sections 12 and 15 in the version valid up to ... [insert: date of the day before the date of entry into force pursuant to Article 10 of this Act] shall apply for the last time to management and group management reports for the financial year beginning before January 1, 2017. " (5) The Banking Act in the version published on September 9, 1998 (BGBl. I p. 2776), which was last amended by Article 14 paragraph 2 of the law of May 10, 2016 (BGBl. I p. 1142), will be changed as follows: 1. In Section 3 Paragraph 2 Clause 1 Number 1 and Section 10a Paragraph 5 Clause 1, 2 and 6, the "§ 315a" replaced by "§ 315e". 2. The following § 64 ... [insert: when pronouncing the next free letter addition] is inserted: "§ 64 ... [insert: when pronouncing the next free letter suffix] Transitional regulation to the CSR Directive Implementation Act §§ 3 and 10a in the version of the CSR Directive Implementation Act of ... [insert: date of issue and source] are to be applied for the first time to management reports and group management reports that relate to a financial year beginning after December 31, 2016. Sections 3 and 10a shall remain applicable to management reports and group management reports relating to financial years beginning before January 1, 2017 until ... [insert: date of the day before the effective date pursuant to Article 10 of this Act]. version applicable.” Machine Translated by Google - 26 - (6) The Audit Report Ordinance of June 11, 2015 (BGBl. I p. 930), which was last amended by Article 5 of the law of April 11, 2016 (BGBl. I p. 720), is amended as follows: 1. In Section 47 Paragraph 2 Sentence 2, the statement “Section 315a” is replaced by the statement “Section 315e”. 2. The following paragraph 5 is added to Article 71: (5) "Section 47 in the version of the CSR Directive Implementation Act of ... [insert: date of issue and source] is to be applied for the first time to annual and consolidated financial statements, management reports and group management reports for the financial year beginning after December 31, 2016 . Section 47 in the version valid up to ... [insert: date of the day before the day of entry into force pursuant to Article 10 of this Act] shall be applied for the last time to management and group management reports for the financial year beginning before January 1, 2017." (7) The Financial Conglomerate Solvency Ordinance of September 20, 2013 (BGBl. I p. 3672) is changed as follows: 1. The following § 11 is added: „§ 11 Transitional regulation to the CSR Directive Implementation Act Annex 3 item 004 in the version of the CSR Directive Implementation Act of ... [insert: date of issue and reference] is to be applied for the first time to management reports and group management reports that relate to a financial year beginning after December 31, 2016. Annex 3 item 004 in the version valid up to ... [insert: date of the day before the effective date pursuant to Article 10 of this Act] remains applicable to management reports and group management reports relating to financial years beginning before January 1, 2017 .” 2. In Appendix 3 item 004 letters a and b, the information “§ 315a HGB” is replaced by the information “§ 315e HGB”. Article 10 Come into effect This law comes into force the day after its promulgation. Machine Translated by Google - 27 - Reason A. General part I. Purpose and necessity of the regulations The draft serves to implement Directive 2014/95/EU of the European Parliament and of the Council of October 22, 2014 amending Directive 2013/34/EU with regard to the disclosure of non-financial and diversity-related information by certain large companies and groups (Directive 2014/95/EU) into German law. The implementation is also taken as an opportunity to selectively modernize the regulations in the German Commercial Code (HGB) on the management report and the group management report. The last reform of the accounting law in the HGB through the Accounting Directive Implementation Act (BilRUG) largely retained the regulations on the management report and the group management report and only mandatory additions due to Directive 2013/34/EU of the European Parliament and Council of June 26, 2013 on the annual accounts, consolidated accounts and related reports of certain types of companies and amending Directive 2006/43/EC of the European Parliament and of the Council and repealing Council Directives 78/660/EEC and 83/349/EEC (Directive 2013/34/EU). Since the directives 2013/34/EU and 2014/95/EU were negotiated at short intervals and are to be implemented within a short period of time, the regulations on the management report and the group management report have not already been changed in the BilRUG. 1. Objective of Directive 2014/95/EU Directive 2014/95/EU supplements Directive 2013/34/EU, which is central to accounting law, with new requirements for non-financial reporting. In addition, reporting will be expanded with regard to diversity concepts for appointments to management bodies. Directive 2014/95/EU is used to make regulations that are intended to strengthen the confidence of investors and consumers in companies by reporting more than before about non-financial aspects of the activities of certain companies. The new requirements for reporting can also indirectly influence the actions of companies and create an incentive to give greater weight to non-financial matters and the associated risks, concepts and processes in corporate management. The public discussion about the scope of corporate responsibility in their supply chain has shown this once again. The provisions of Directive 2014/95/EU are intended to leave companies with a high degree of flexibility in order to take into account the complex aspects of corporate responsibility and the variety of concepts implemented by companies for corporate social responsibility (CSR). and to take CSR concepts into account; they should ensure a sufficient degree of comparability of the reporting and meet the need to give consumers easy access to information about the effects of the activities of companies. 2. Significant changes due to Directive 2014/95/EU Directive 2014/95/EU provides for regulations according to which the companies subject to the directive should convey a true and fair view of their concepts, results and risks with regard to non-financial aspects. Large companies of public interest with more than 500 employees are recorded Machine Translated by Google - 28 - made. In this context, according to Articles 2 and 3 of Directive 2013/34/EU, large public- interest entities are entities that are publicly traded, credit institutions or insurance companies and that exceed two of the three following threshold values at the same time on two consecutive balance sheet dates: – Total assets 20 million euros, – Sales revenue 40 million euros, – 250 employees on average over the year. However, Directive 2014/95/EU only includes companies from this group that have an annual average of more than 500 employees on two consecutive balance sheet dates. In addition, Directive 2014/95/EU stipulates that reporting must take place at group level and that this takes precedence over reporting at company level. Subsidiaries therefore do not regularly have to prepare their own non-financial statements or separate non- financial reports. According to Directive 2014/95/EU, the companies concerned must include a so-called non-financial statement in their management report, which presents significant non- financial aspects. Information on concepts, applied due diligence processes, results of the concepts, material risks and non-financial performance indicators must be provided, each related at least to the topics of environmental issues, employee issues, social issues, respect for human rights and combating corruption and bribery. In addition, the business model of the company must be briefly described. If the company does not have a concept, this must be explained and the reasons given. Directive 2014/95/EU does not require companies to follow any specific framework or standard when reporting. Rather, it provides that the member states give companies flexibility in the choice of standards or frameworks. In addition, Directive 2014/95/EU contains further requirements with regard to the responsibility of the administrative, management and supervisory bodies for non- financial reporting and with regard to the (limited) examination of the reports and their publication. The subject of Directive 2014/95/EU are also Member State options. In particular, Member States may decide: – whether they allow companies to take certain adverse measures in exceptional circumstances omit information from their reports, – whether they allow companies to present the information in a separate non-financial report rather than as part of the management report and, if they choose to have the separate report, to publish it together with the management report or separately on the website, – whether they require entities to require independent assurance on non-financial disclosures beyond the (limited) audit. In addition to non-financial reporting, Directive 2014/95/EU also provides for the Reporting in the Corporate Governance Statement (today: § 289a HGB) about Diversity concepts of companies when filling their administrative, management Machine Translated by Google - 29 - and supervisory bodies, for example with regard to age, gender, educational or professional background. If the company does not have a concept, this must be explained. Only large capital market-oriented companies are covered by this reporting obligation. With regard to this reporting obligation, Directive 2014/95/EU provides for the Member State option to essentially limit the obligation to large listed public limited companies and partnerships limited to shares. 3. Overview of implemented regulations Directive 2014/95/EU amending Directive 2013/34/EU is replaced by the Provisions of the draft implemented: policy implementation contents In draft 2013/34/ EU as amended by Directive 2014/95/ EU Article 16 paragraph 1 § 285 Number 20 Extension of disclosure Article 1 Number 2 letter c HGB-E requirements to other financial instruments Artikel 19a § 289b paragraph 1, § scope of application Article 1 numbers 4, 22 Paragraph 1 340a paragraph 1a, § the non-financial and 25 subparagraph 1 341a paragraph 1a reporting obligation HGB-E Artikel 19a § 289c paragraph 2 Non-financial aspects Article 1 Number 4 Paragraph 1 HGB-E covered subparagraph 1 Artikel 19a § 289c paragraph 1 business model Article 1 Number 4 Paragraph 1 HGB-E subparagraph 1 point a Artikel 19a § 289c paragraph 3 concepts and due Article 1 Number 4 Paragraph 1 Number 1 HGB-E diligence processes subparagraph 1(b). Artikel 19a § 289c paragraph 3 results of the concepts Article 1 Number 4 Paragraph 1first Number 2 HGB-E subparagraph, point (c). Artikel 19a § 289c paragraph 3 Material risks Article 1 point 4 Paragraph 1 first Number 3 and 4 subparagraph, point (d). HGB-E Artikel 19a § 289c paragraph 3 Non-financial performance Article 1 Number 4 Paragraph 1 first Number 5 HGB-E indicators subparagraph, point (e). Artikel 19a § 289c paragraph 4 Comply or Explain Article 1 Number 4 Paragraph 1 HGB-E subparagraph 2 Machine Translated by Google - 30 - policy implementation contents In draft 2013/34/ EU as amended by DirectiveEU 2014/95/ Artikel 19a § 289c paragraph 3 Reference to amounts in Article 1 Number 4 Paragraph 1 Number 6 HGB-E the financial statements subparagraph 3 Artikel 19a § 289e HGB-E Omission of Information Article 1 Number 4 Paragraph 1 subparagraph 4 Artikel 19a § 289d HGB-E Reporting based on Article 1 Number 4 Paragraph 1 frameworks subparagraph 5 Article 19a Ab § 289b paragraph 2 Exemption from Article 1 Number 4 sentence 3 HGB-E subsidiaries Article 19a Ab § 289b paragraph 3 Separate non-financial Article 1 Number 4 sentence 4 HGB-E report Article 19a Ab § 317 paragraph 2 Verification of the information Article 1 number 12 sentence 5 Clause 4 and 5 HGB AND Article 20 paragraph 1 § 289f paragraph 2 diversity information Article 1 Number 5 letter g sentence 1 Number 6, § 340a Letter a, number 22 and Paragraph 1b and § 25 341a Paragraph 1b HGB-E Article 20 paragraph 1 § 289f paragraph 5 Comply or Explain Article 1 Number 5 letter g sentence 2 HGB-E letter b Article 20 paragraph 3 § 317 paragraph 2 Verification of diversity Article 1 Number 12 Sentence 6 HGB-E information Article 20 paragraph 4 § 289f paragraph 2 Limitation of the scope Article 1 Number 5 Number 6 HGB-E of diversity information Article 20 paragraph 5 § 289f paragraph 2 Exception for small and Article 1 Number 5 Number 6 HGB-E medium-sized listed companies Company Article 28 paragraph 1 § 314 paragraph 1 Extension of the Article 1 Number 8 i. In conjunction with Number 12 HGB disclosure requirement Article 16 paragraph 1 AND to include other financial instruments letter c Machine Translated by Google - 31 - policy implementation contents In draft 2013/34/ EU as amended by DirectiveEU 2014/95/ Article 29 paragraph 1 § 315 paragraph 2 reference in Article 1 Number 9 i. In conjunction with Sentence 2 HGB-E Group management report on Letter b double letter dd Article 19 paragraph 2 the notes to the consolidated letter c financial statements on treasury shares Artikel 29a § 315b paragraph 1, § scope of application Article 1 numbers 10, 23 Paragraph 1 340i paragraph 5 and at corporate level and 26 subparagraph 1 § 341j paragraph 4 HGB-E Artikel 29a § 315c paragraph 1 i. to be recorded Article 1 Number 10 Paragraph 1 V. m. § 289c paragraph 2 HGB-E non-financial aspects subparagraph 1 Artikel 29a § 315c paragraph 1 i. Content of the non- Article 1 Number 10 Paragraph 1 V. m. § 289c paragraph 1 and 3 financial statement subparagraph 1 letters HGB-E, § 315c a to e paragraph 2 HGB-E Artikel 29a § 315c paragraph 1 i. Comply or Explain Article 1 Number 10 Paragraph 1 V. m. § 289c paragraph 4 HGB-E subparagraph 2 Artikel 29a § 315c Absatz 1 § 289c Reference to amounts in the Article 1 Number 10 Paragraph 1 i. V. m. consolidated financial statements subparagraph 3 Paragraph 3 Number 6 HGB-E Article 29a Ab § 315c Absatz 3 § 289e Omission of information Article 1 Number 10 sentence 1 subparagraph i. V. m. 4 HGB-E Artikel 29a § 315c Absatz 3 i. V. use from Article 1 Number 10 Paragraph 1 m. § 289d HGB-E frameworks subparagraph 5 Article 29a Ab § 315b paragraph 2 Exemption from Article 1 Number 10 sentence 3 HGB-E subsidiaries Article 29a Ab § 315b paragraph 3 Separate non-financial Article 1 Number 10 sentence 4 HGB-E group report Article 29a Ab § 317 paragraph 2 Verification of the information Article 1 number 12 sentence 5 Clause 4 and 5 HGB AND Machine Translated by Google - 32 - policy implementation contents In draft 2013/34/ EU as amended by DirectiveEU 2014/95/ Article 33 paragraph 1 § 264 paragraph 1 responsibility of Article 6 numbers 1, 2 HGB i. V. m. § HGB- 289b members of corporate and 5 E, §§ 170, 171, 283 bodies AktG-E Article 34 paragraph 3 § 317 paragraph 2 Verification of the information Article 1 number 12 Clause 4 and 5 HGB AND Article 51 § 331 number 1 and Sanctions for violations Article 1 Number 16, 2 HGB-E, also i. In 17, 24, 27 conjunction with 340m§ and § 341m HGB, 334 § paragraph 1 numbers 3 HGB-E, and 4 § 340n paragraph 1 numbers 3 and 4 HGB E, § 341n paragraph 1 numbers 3 and 4 HGB-E Article 4 of Directive Article [next free Transitional provision Article 2 point 2 2014/95/EU designation] EGHGB-E II. Essential content of the draft The draft provides for changes to the accounting regulations of the HGB in order to implement the requirements of Directive 2014/95/EU. Unless otherwise stated, the guideline is implemented on a one-to-one basis. This means in particular: – Large capital market-oriented corporations and limited liability partnerships as well as large credit institutions and insurance companies with more than 500 employees are required to report on material non-financial matters. – The reporting includes at least information on environmental, employee and social issues, respect for human rights and the fight against corruption and bribery. – A description of the business model and information on concepts and their results, on due diligence processes, on significant risks with serious effects on non-financial matters, on the most important non-financial performance indicators and, if necessary, on amounts reported in the annual financial statements are required. Information to be reported is required for understanding the situation and the effects of the corporation. Machine Translated by Google - 33 - – In addition, certain companies have to supplement their corporate governance statement with more precise information on the diversity concepts for the company's governing bodies. – The existing penalties and fines will be expanded to include non-financial reporting violations. The draft simultaneously exercises Member State options to address specific reporting situations while reducing the burden on businesses. On the one hand, this applies to the option of allowing companies to omit disadvantageous information in certain, strictly limited, exceptional situations. The reason for this is the consideration that company and business secrets are affected by the reporting obligation and that a weighing of interests is required in exceptional cases. This Member State option is already narrowly limited and will be implemented on a one-to-one basis. The ED also exercises the Member State option to allow entities to choose to present the non-financial information as a non-financial statement in the management report or in a separate non-financial report. If the companies opt for a separate non-financial report, they can also decide whether to disclose it with the management report or publish it on their website. For separate publication on the website, they must – as stipulated by the directive – observe a maximum period of six months from the balance sheet date. This period is somewhat longer for capital market-oriented companies and shorter for non-capital market-oriented credit institutions and insurance companies than the disclosure period of Section 325 HGB that currently applies to annual financial statements, but is a mandatory result of Directive 2014/95/ EU. In accordance with the requirements of the directive, the scope of application of the diversity information is limited to large capital market-oriented companies. In addition, in line with the previous right to the corporate governance statement, the Member State option is used to limit this reporting to certain, in particular listed public limited companies and partnerships limited to shares. In addition, the need for implementation is taken as an opportunity to selectively adapt further provisions of commercial accounting law. With regard to the management report, the changes in content focus on the implementation of European legal requirements. Other topics related to the management report are reserved for future legislative projects. III. alternatives There is no way to waive legal regulations to implement Directive 2014/95/EU. At the same time, the decision of the federal government of December 11, 2014 to reduce bureaucracy is taken into account. Alternative decisions would be conceivable when exercising the options of the member states. However, they would lead to an additional burden on the economy. This applies in particular to the option to require independent verification and confirmation of the non-financial disclosures, because this would entail significant compliance costs. With regard to the option of allowing a separate non-financial report, there is a strong case for retaining the flexibility for companies allowed by Directive 2014/95/EU for the time being. Many companies that publish sustainability reports today use their own reporting formats and do not report within the management report. However, there is a need for regulation primarily where non-financial information has not been provided at all or has not been provided with sufficient specificity. Machine Translated by Google - 34 - In view of the need to modernize the other regulations amended by the draft, there is no equally suitable alternative. IV. Legislative Competence The legislative competence of the federal government follows from Article 74 paragraph 1 numbers 1 and 11 of the Basic Law (GG). A federal regulation is necessary because the issues of accounting and publicity addressed in the draft as well as the design of the procedures conducted by the Federal Office of Justice affect the legal and economic unit in the federal territory in central points and the draft in this respect deals with the further development of existing federal codifications (Article 72 paragraph 2 GG). The law serves to maintain legal unity, ie the validity of the same standards throughout Germany. Since the accounting law is already regulated by federal law and it is about the further development and modernization of this law, only a federal regulation can be considered and not a state law. IN. Compatibility with European Union law and international law contracts The draft serves to implement Directive 2014/95/EU and stays within the framework of the directive. Insofar as the draft otherwise changes the regulations on the management and group management report, it remains within the framework permitted by Directive 2013/34/EU. In addition, it is compatible with international treaties concluded by the Federal Republic of Germany. WE. Legal consequences 1. Legal and administrative simplification The draft takes the implementation of Directive 2014/95/EU as an opportunity to make selective simplifications in the existing regulations on the management report and the group management report. Individual provisions of the draft help to eliminate existing legal uncertainties and thus lead to a clearer legal situation. 2. Sustainability Aspects The draft is consistent with the Federal Government's guiding principles on sustainable development as defined in the National Sustainability Strategy. The new regulations provide for stronger reporting on non-financial aspects. This does not directly affect any sustainability aspects. Ultimately, however, the reporting obligation aims to sensitize the companies covered to fundamental aspects of sustainability and to signal a certain level of expectation on the part of the legislature towards corporate management oriented towards aspects of sustainability (cf. also Recital 3 of Directive 2014/95/EU ). In this respect, the draft is particularly in line with management rule number 5 of the National Sustainability Strategy, according to which economic growth must be designed in an ecologically and socially compatible manner. 3. Household expenses excluding compliance costs The draft is primarily aimed at companies in the private sector. Overall, no significant budgetary impact is expected, especially since no new facilities will be created. Additional need for material and human resources Machine Translated by Google - 35 - in the case of the federal government, financial and positional compensation is to be provided in the respective individual plan. There are no budgetary expenses for the federal states and municipalities. 4. Compliance Costs a) Compliance costs for citizens There are no compliance costs for citizens. b) compliance costs for the economy aa) Overview (a) Implementation-related compliance costs Overall, the draft law leads to an implementation-related burden on the economy with annual compliance costs of around EUR 10.794 million (current costs) and one-off conversion costs of around EUR 35.219 million. Implementation-related changes in the compliance costs for business result on the one hand from the new obligation to provide a non-financial declaration in the management report or in the non-financial group declaration in the group management report and on the other hand from the new obligation to report on diversity concepts in the declaration or group declaration on corporate governance. As with the existing information obligations for the economy in the area of commercial accounting, the compliance costs for the preparation, the audit by the auditor and the publication of the non-financial statement are estimated in summary. Since the scope of application of the new reporting specifications is not congruent with the information requirements recorded in the Federal Statistical Office’s web database with regard to the preparation, auditing and publication of annual and consolidated financial statements (200610160907261,Statistical 200610060815531, Office set200610131547162, out six new initially 200610131041013), information divided into obligations the Federal two content-related categories: defined. These are – Obligation to provide a non-financial statement in the management report or non-financial statement cial group declaration in the group management report, – Obligation to report on diversity concepts in the declaration rel wise corporate governance statement, The Federal Statistical Office has also divided the companies recorded into the following case groups: – Companies subject to individual reporting (obligation to provide a non-financial statement) – Case group “corporations”: This includes companies that only have their own non- financial statement (Sections 289b Paragraph 1, 340a Paragraph 1a, Section 341a Paragraph 1a HGB-E), but not also have to prepare a non-financial group declaration (§§ 315b Paragraph 1, 340i Paragraph 5, § 341j Paragraph 4 HGB-E). – (Only) parent companies that are required to report as a group (obligation to submit a non- financial group statement) – “Groups” case group: This includes parent companies that only have to prepare a non-financial group statement but not their own non-financial statement. Machine Translated by Google - 36 - – Parent companies that are required to report both as a group and as individual reports (obligation to submit a non-financial statement and a non-financial group statement) – “Parent company” case group: This includes parent companies that have to prepare both a non-financial group statement and their own non-financial statement. The number of companies that will be affected by the reporting requirements in the future is based on estimates by the operator of the Federal Gazette. This results in the following new information obligations: Number designation Paragraphs E.2.001 Obligation to provide a non-financial statement in §§ 289b, 289c to 289e, 340a the management report paragraph 1a, § 341a Case group: corporations Paragraph 1a HGB-E E.2.002 Mandatory non-financial group statement in the §§ 315b, 315c, 289c to 289e, group management report 340i paragraph 5, § 341j Case group: corporations paragraph 4 HGB-E E.2.003 Obligation to make a non-financial declaration §§ 289b, 289c to 289e, 340a management report and in the group management report paragraph 1a, § 341a §§ 315b, Case group: parent company Paragraph 1a, 315c, 340i paragraph 5, § 341j paragraph 4 HGB-E E.2.004 Obligation to make a non-financial declaration § 336 paragraph 2 sentence 1 management report Number 2, §§ 289b to 289e Case group: cooperatives HGB-E E.2.005 Expansion of disclosures in the corporate § 289f paragraph 2 number governance statement 6, 340a paragraph 1b, § 341a Case group: corporations paragraph 1b HGB-E E.2.006 Expansion of the disclosures in the corporate §§ 315d, 289f paragraph 2 governance statement Number 6, 340i paragraph 6, Case group: corporations § 341j paragraph 5 HGB-E In addition, with regard to the examination of the non-financial reporting by the Supervisory Board (section 171 (1) sentence 4 AktG-E), there are four additional requirements for the economy that are not information obligations: Number designation Paragraphs E.2.007 Examination of the non-financial reporting by the § 171 paragraph 1 sentence 4 Supervisory Board AktG-E Case group: corporations E.2.008 Examination of the non-financial reporting by the § 171 paragraph 1 sentence 4 Supervisory Board AktG-E Case group: corporations E.2.009 Examination of the non-financial reporting by the § 171 paragraph 1 sentence 4 Supervisory Board AktG-E Case group: parent company Machine Translated by Google - 37 - Number designation Paragraphs E.2.010 Examination of the non-financial reporting § 38 paragraph 1b GenG-E by the Supervisory Board Case group: cooperatives (b) Relief through the possibility of separate reporting With regard to the information requirements E.2.001 to E.2.004, the economy is relieved by using the option of allowing the reporting companies to publish a separate non-financial report at a later point in time on the company’s website instead of a non- financial statement in the management report to publish. The use of this option leads to a reduction in the amount of around EUR 539,700 in terms of annual compliance costs and in the amount of around EUR 3.522 million in terms of one-off conversion costs. Without using this option, the annual compliance costs for business would increase from EUR 10.794 million to approx. EUR 11.3337 million and the one-time conversion costs for business would increase from approx. EUR 35.219 million to approx. EUR 38.741 million . The relief in terms of annual compliance costs is effective as part of the "one in, one out" approach. With regard to the option that is also used of allowing reporting companies to omit disadvantageous information in exceptional cases (§ 289e HGB-E), no significant bureaucratic relief is to be expected, since a company can only rely on the regulation can invoke. bb) Assumptions and calculation bases Estimating the compliance costs involves numerous uncertainties. In 2013, the European Commission assumed annual costs of 600 to 4,300 euros per company in its impact assessment with regard to the non-financial reporting obligations. The annual cost of reporting on diversity policies has been estimated at between EUR 600 and EUR 1 000 per company. However, these estimates related in particular to a broader area of application and a lesser depth of reporting. In addition, numerous business associations have expressed during the legislative process that the amounts are too low. For this reason, the estimates of the European Commission were not used to estimate the compliance costs for business. In addition, the Federal Ministry of Justice and Consumer Protection has asked for an estimate of the expected costs of non-financial reporting as part of the association's participation in the draft bill of the CSR Directive Implementation Act. As a result, several associations submitted cost estimates in their statements, which ranged from a few thousand euros to several million euros per company and year. In most cases, only a rough estimate was made and it was pointed out that the costs could not be calculated more precisely at the moment. The majority of the statements contained no detailed description of the underlying assumptions or calculations. Also in view of the wide range of the cost estimates given, the estimates were not used as a basis for the subsequent calculation of the compliance costs. In a statement on the draft of the CSR directive Implementation Act was also pointed out that the costs for the first report are difficult to estimate as they vary greatly and depend on the respective degree of preparation of the organization and the equipment with the appropriate Machine Translated by Google - 38 - depend on the data systems. As a rule, the effort involved in sustainability reporting is greatest in the first year, before learning and synergy effects set in in the following years. The following calculation is based on this assumption, so that the one-off conversion costs are assumed to be higher than the annual compliance costs. (a) case numbers The case numbers are based on estimates by the operator of the Federal Gazette based on an evaluation of the annual and consolidated financial statements submitted to it. (aa) Obligation to provide a non-financial statement in the management report or a non-financial group statement in the group management report The obligation to provide a non-financial statement in the management report or a non- financial group statement in the group management report only applies to capital market- oriented corporations (including limited liability partnerships) as well as credit institutions and insurance companies that are large themselves – or in the case of a group on a consolidated basis – and also employ more than 500 people (§ 289b paragraph 1, § 315b paragraph 1, § 340a paragraph 1a, § 341a paragraph 1a HGB-E). The operator of the Federal Gazette estimates that a total of 548 companies are included. This takes into account the fact that numerous German companies are consolidated by companies based in other EEA countries. As a rule, the non-financial declaration should also be prepared by these foreign parent companies and free the German companies from their own reporting obligation. The composition of the 548 companies is assumed to be as follows: description case count Individual reporting companies (non-financial statement 222 required) – corporations (Only) parent companies subject to group reporting (obligation 171 to provide a non-financial group statement) – groups Group and individual reporting parent companies 155 (Mandatory non-financial statement and non-financial group statement) – parent company In principle, large cooperatives are also affected (§ 336 Paragraph 2 Sentence 1 Number 2 HGB- E). However, according to the operator of the Federal Gazette, there are currently no capital market-oriented cooperatives that are not also credit institutions. Since banks are already included in the case groups mentioned above, a case number of zero is given for the case group of cooperatives taken. (bb) Obligation to include diversity information in the declaration or group declaration on corporate governance The scope for the diversity disclosures in the statement, respectively Group declaration on corporate governance (section 289f paragraph 2 number 6, section 315d, section 340a Paragraph 1b, Section 341a Paragraph 1b HGB-E) deviates from the scope of the non-financial declaration: On the one hand, only certain legal forms are covered (stock corporation, partnership limited by shares, European company), so that in particular - unlike the obligation to non-financial statement – no companies with Machine Translated by Google - 39 - limited liability or credit institutions are registered in the legal form of the cooperative. On the other hand, the threshold of 500 employees that applies to the obligation to submit a non- financial declaration is not applicable. Based on estimates by the operator of the Federal Gazette, it is assumed that 326 companies are subject to the obligation to include diversity information in the corporate governance statement. These are to be classified as follows (case groups): description case count Companies subject to individual reporting (corporate 46 governance declaration required) – corporations Group and, if applicable, individual parent companies that are 280 required to report (requirement to declare or Group declaration on corporate governance) – Groups A further breakdown of the groups is not necessary because the reporting essentially relates to diversity concepts and therefore no significant differences are to be expected between the expenses of a parent company that is required to report individually and as a group and a parent company that is only required to report as a group. (b) expenditure of time (aa) Obligation to provide a non-financial statement in the management report or a non-financial group statement in the group management report In the absence of other detailed data, the results of a user survey conducted by the German Council for Sustainable Development in December 2015 on the German Sustainability Code ( DNK) carried out. In the absence of further data and since the DNK is a reporting standard for sustainability reporting that contains CSR elements, the results determined therein can serve as the basis for the estimate made. An average of 13.5 full-time equivalent working days (eight working hours each) and three employees is assumed for the annual time required for companies subject to individual reporting (case group corporations). These values resulted from the user survey for the time that companies with more than 250 employees need on average for reporting according to the DNK. The time required for parent companies that are required to report to a group (case group groups) is estimated at 18 full-time equivalent working days and four employees. It is assumed that the greater amount of data to be collected from the subsidiaries can be partially offset by the fact that processes for collecting and transmitting data are often already in place, on which new processes that may be required can be built. For the one-time expenditure of time, an average of 22.1 full-time equivalent working days and four employees is assumed for companies subject to individual reporting (case group corporations). According to the user survey, this is the time that companies with more than 250 employees need on average for the first reporting according to the DNK. The time required for parent companies that are required to report on a group basis (group group) is estimated at 28.8 full-time equivalent working days and eight employees. This corresponds to the same ratio as in the Machine Translated by Google - 40 - Annual effort: The time required for groups is assumed to be 1.6 times the time required for individual companies because the parent companies have to implement a system for recording and transmitting data for non-financial reporting at their subsidiaries. It is assumed that such systems already exist at some companies due to existing voluntary sustainability reporting. For parent companies that are subject to both group and individual reporting (group parent company case), it is assumed that both the annual and one-off time expenditure is 1.5 times the time expenditure of the parent company that only has to report on a group basis. It can be assumed that on the one hand more data has to be processed, but on the other hand a lot of information is repeated and can therefore be processed more quickly. The time required per case per hour given below for the individual information obligations is obtained by multiplying the number of working days shown above by the number of working hours per day (eight hours) and by the above number of employees. (bb) Obligation to include diversity information in the declaration or group declaration on corporate governance To estimate the time required, the information obligation “Declaration on corporate governance in the management report on determinations and information on compliance with the target figures or information on the reasons for non-compliance” according to Section 289a Paragraph 4 Sentence 1 HGB (ID_IP 2015042316223701) is used. The time required in the Federal Statistical Office's web database is three minutes per case. It is estimated that the description of a diversity concept and its results will require more time than the naming of target values (information obligation 2015042316223701). Therefore, a time limit of 15 minutes per case is used at this point. (cc) Review of non-financial reporting by the Supervisory Board According to a baseline measurement by the Federal Statistical Office from 2015, a total of 2,858 minutes for corporations and a total of 1,400 minutes for groups are estimated for the Supervisory Board to review the accounting documents in the Federal Statistical Office’s web database. The Federal Statistical Office estimates that the additional check of the non-financial reporting should increase the overall check time by around 10 percent and therefore assumes a time requirement of 285 minutes for the case group corporations and 140 minutes for the case group groups. For companies that are subject to both group and individual reporting, 1.5 times the time is assumed, so that 210 minutes is assumed. (c) Pay Rate The current wage cost table 2011 is used for the wage costs. Accordingly, the wage costs for companies in “Industry branches A to S” are applied below. The average wage costs for medium (EUR 30.90 per hour) and high level of qualification (EUR 47.30 per hour) are used to prepare the non-financial statement or Group statement and to expand the information in the corporate governance statement. i.e. 39.10 euros per hour. Machine Translated by Google - 41 - A high level of qualification is assumed for the examination by the Supervisory Board. Based on the average wage rate of 47.30 euros determined by the Federal Statistical Office for all employees with a high level of qualification in companies in all economic sectors and all employee size classes, the wage rate for the groups of people concerned (supervisory board members) is estimated at 100 euros. cc) In detail (a) Annual Compliance Costs (aa) Bureaucracy costs from information obligations The annual additional expense in the form of bureaucratic costs for business from fulfilling the six newly introduced information obligations is estimated at a total of around EUR 10.594 million. This effort arises from the implementation of Directive 2014/95/EU and therefore does not fall within the scope of the "One in, one out" regulation of the federal government. The annual additional expenses are made up as follows men: information case count time Wage personnel compliance obligation consumption rate in costs costs is Fall euros/ in EUR in EUR in Std. Std. (rounded) (rounded) E.2.001 Mandatory non- financial statement 222 324 39,10 2 812 385 2 812 385 in the management report corporations E.2.002 171 576 39,10 3 851 194 3 851 194 Obligation to non- financial Group declaration in the group management report corporations E.2.003 155 648 39,10 3 927 204 3 927 204 Mandatory non- financial statement in the management report and in the Group management report take parent company Machine Translated by Google - 42 - information case count time Wage personnel compliance obligation consumption rate in costs costs is Fall euros/ in EUR in EUR in Std. Std. (rounded) (rounded) E.2.004 0 - 39,10 0 0 Mandatory non- financial statement in the management report cooperatives E.2.005 46 0,25 39,10 450 450 extension of information in the Explanation to the corporate management corporations E.2.006 280 0,25 39,10 2 737 2 737 extension of information in the explanation to corporate management corporations (bb) Annual compliance costs due to additional requirements The annual additional expenditure for the fulfillment of the four newly created requirements for the economy with regard to the examination of the non-financial reporting by the supervisory board is estimated at a total of around 199,600 euros. This effort arises from the implementation of Directive 2014/95/EU and therefore does not fall within the scope of the “One in, one out” regulation of the federal government. The annual additional expenses are made up as follows: specification case count time Wage personnel compliance consumption rate in costs costs is Fall euros/ in EUR in EUR in Std. Std. (rounded) (rounded) E.2.007 222 4,75 100 105 450 105 450 Examination of the non-financial Reporting by the supervisory board corporations Machine Translated by Google - 43 - specification case count time Wage personnel compliance consumption rate in costs costs is Fall euros/ in EUR in EUR in Std. Std. (rounded) (rounded) E.2.008 171 2,33 100 39 900 39 900 Examination of the non-financial Reporting by the supervisory board corporations E.2.009 155 3,5 100 54 250 54 250 Examination of the non-financial Reporting by the supervisory board take parent company E.2.010 0 - 100 0 0 Examination of the non-financial Reporting by the supervisory board cooperatives (b) One-off conversion effort In addition, with regard to four of the newly introduced information obligations, the Federal Statistical Office estimates that there will be a one-off changeover effort to familiarize yourself with the new regulations and to set up the necessary processes for data collection and transmission in the form of an additional effort of EUR 35.219 million. This is made up as follows: information case count time Wage personnel compliance obligation consumption rate in costs costs is Fall euros/ in euros in euros and Std. Std. (rounded) (rounded) E.2.001 Mandatory non- financial statement 222 707,2 39,10 6 138 637 6 138 637 in the management report corporations Machine Translated by Google - 44 - information case count time Wage personnel compliance obligation consumption rate in costs costs is Fall euros/ in euros in euros and Std. Std. (rounded) (rounded) E.2.002 171 1 843,2 39,10 12 323 820 12 323 820 Obligation to non- financial Group declaration in the group management report corporations E.2.003 155 2 764,8 39,10 16 756 070 16 756 070 Mandatory non- financial statement in the management report and in the Group management report take parent company E.2.004 0 - 39,10 0 0 Mandatory non- financial statement in the management report cooperatives With regard to the expansion of the disclosures in the declaration on corporate governance and the examination of the non-financial reporting by the Supervisory Board, the Federal Statistical Office estimates that no significant conversion effort should arise in this respect. In many cases, existing diversity concepts should already be reported today, for example according to the previous Section 289a Paragraph 2 Number 2 HGB. In addition, unlike the non-financial declaration, the focus is less on the collection of data and more on the description of the diversity concept. It can therefore be assumed that no new processes need to be set up in connection with reporting in the corporate governance statement. The same applies to the review of non-financial reporting by the Supervisory Board. As a rule, the supervisory boards of the companies covered should already be examining non-financial information, as current law already requires non-financial aspects to be reported in the management and group management report (in particular Sections 289 (3), 315 (1) sentence 4 HGB ) and some of the companies also report on non-financial matters as part of a voluntary sustainability report. (c) Relief through the possibility of separate reporting With regard to the information requirements E.2.001 to E.2.004, a relief for the economy results from the use of the possibility of allowing the reporting companies to make a separate instead of a non-financial declaration in the management report Machine Translated by Google - 45 - to publish the non-financial report on the company's website at a later date. On the basis of random research on the websites of companies included and a list of German companies maintained by GRI, a common framework for CSR reporting, which prepare a sustainability report in accordance with GRI, it can be assumed that at least some of the companies included are already reported voluntarily on non-financial aspects. As part of the association hearings on the CSR Directive Implementation Act, business pointed out that some of these voluntary reports were not prepared and published at the same time as the annual financial statements or the management report. This was justified by the fact that, on the one hand, certain non-financial data (e.g. the annual electricity bill) was not yet available at the time of the annual financial statements and, on the other hand, the sustainability reporting should be kept out of the work-intensive phase of the annual financial statements. The additional personnel expenses that would arise without using the relieving option of separate reporting (e.g. through a complex estimate of non-financial data that is not yet available or overtime premiums for employees involved in accounting) can only be estimated very roughly because it is largely due to the individual situation of each individual company with regard to employee capacities and existing reporting processes. Against this background, it is assumed that the annual personnel expenses calculated for the information obligations E.2.001 to E.2.004 of the companies covered would increase by an average of approx. 5 percent. A reduction of around EUR 539,700 in terms of annual compliance costs is therefore assumed for the use of the relieving option. This relief is effective as part of the "one in, one out" approach. With regard to the one-off conversion effort, the relief associated with the use of the option is estimated at around 10 percent of the one-off conversion effort calculated for the information obligations E.2.001 to E.2.004, i.e. at around EUR 3.522 million, because without using the option, existing reporting cycles and associated data collection processes would have to be converted. Without using the option of separate reporting, the annual compliance costs for the economy would increase from approx. EUR 10.794 million to approx. 11.3337 million euros and the one-time conversion effort for the economy of approx. EUR 35.219 million to approx. EUR 38.741 million. dd) consideration of the interests of small and medium-sized enterprises Small and medium-sized companies are not covered by the scope of the newly created information requirements and the other requirements for the economy because these only apply to certain large companies within the meaning of Section 267 HGB. An extension of the obligations to smaller companies was not planned in order to keep the bureaucracy costs for small and medium-sized companies as low as possible. The explanatory memorandum to the law also expressly refers to Recital 8 of Directive 2014/95/ EU, which stipulates that the new reporting obligations should not lead to excessive administrative burdens for small and medium-sized enterprises in the supply chains of the reporting companies. c) Administrative compliance costs The administrative compliance costs will only change slightly as a result of the changed requirements. With regard to the non-financial reporting obligations, the Federal Office Machine Translated by Google - 46 - the judiciary and the Federal Financial Supervisory Authority have to carry out new tasks by examining the initiation of fine proceedings for violations of the new reporting requirements. Due to a lack of experience, the effort involved in prosecuting the newly created administrative offenses can only be roughly estimated. However, it is assumed that most of the 550 companies covered by the reporting obligation will fulfill their obligations correctly and in good time, so that there will only be a need for control in individual cases. This assumption is based on the fact that the companies covered are all large companies with more than 500 employees, where the existing financial and human resources should generally ensure professional internal management structures and control processes. Against this background, the number of cases is estimated at around 20 cases per year. According to a rough estimate by the Federal Office of Justice, based on a number of cases of around 20 cases per year, the changed specifications result in additional annual personnel costs of EUR 60,791.07, which can be covered within the framework of the existing staffing. These costs include direct personnel, material and overhead costs and are made up as follows: position/ career workforce personnel costs each personnel costs Job total higher service 0,06397545 154 115 Euro 9 859,58 Euro Higher service 0,31506615 113 895 Euro 35 884,47 Euro Medium Grade 0,0160923 96 063 Euro 1 545,89 Euro Cross-sectional tasks 0.11854017 113 895 Euro 13 501,13 Euro In line with the circular from the Federal Ministry of Finance dated May 11, 2016, a surcharge for cross- divisional tasks was taken into account (see fourth line of the table above). This surcharge is 30 percent for subordinate authorities. Therefore, in addition to around 0.4 workers for specialist tasks, a further around 0.12 workers for cross-sectional tasks were taken into account. These were attributed to the personnel cost rate for the higher service. Additional requirements for material and human resources at the federal level should be compensated for financially and in terms of positions in the respective individual plan. 5. Other costs There are no costs for the social security systems or direct effects on the price level, especially on the consumer price level. The creation of new criminal offenses does not result in any quantifiable additional work for the public prosecutor's offices and courts. In this respect, it must be taken into account that the prerequisites for the existence of an offense in relation to the new reporting requirements are much narrower than those for administrative offenses. Since the number of cases for these administrative offenses can only be expected to be in the low double- digit range, a total measurable number of cases for the criminal offenses is not to be expected. 6. Further legal consequences The proposed regulations do not have any direct impact on equality policy. To the extent that the diversity of the composition of corporate bodies is the subject of increased reporting, the new Machine Translated by Google - 47 - gave the regulations already created by the law for the equal participation of women and men in management positions in the private sector and in the public service. However, it should be emphasized that the new regulations on non-financial reporting by certain large companies can indirectly contribute to employee concerns and in particular goals for better equality between women and men in companies being given greater weight in corporate management. The new regulations can also have indirect effects in the other areas covered by the report. In this way, environmental and social policy goals and the enforcement of respect for human rights can be better achieved if companies report on them more intensively and develop concepts for them. In the long term, Directive 2014/95/ EU aims to contribute to the transition to a sustainable global economy by combining long- term viability with social justice and environmental protection (Recital 3). The design follows this goal. In accordance with Directive 2014/95/EU, the draft also aims to strengthen consumer confidence in companies and to provide them with easily understandable and useful information. In this respect, consumer policy effects can be affirmed. Demographic effects are not to be expected. VII. limitation; evaluation A time limit is not envisaged since the draft is a European directive. Article 3 of Directive 2014/95/EU provides for a review of the directive by the European Commission, which is to be completed by December 6, 2018 with the publication of a report by the European Commission to the European Parliament and the Council. Since the draft only provides for application of the changed regulations for the financial year beginning on or after January 1, 2017, the first implementation results will only be available in the course of 2018 and thus shortly before the end of the evaluation at European level. Against this background, a separate national evaluation before December 2018 does not appear appropriate. B. Special Part Regarding Article 1 (amendment to the Commercial Code - HGB) To number 1 In Section 264 (3) sentence 1 number 3 letter a, a reference to the last amendment to Directive 2013/34/EU (Accounting Directive) is supplemented by Directive 2014/95/EU. To number 2 The amendment of Section 285 Number 20 HGB serves to align the German regulations more closely with Article 16 Paragraph 1 Letter c of Directive 2013/34/EU. Accordingly, additional disclosures are required in the notes for all financial instruments measured at fair value. The applicable law restricts this information to financial instruments held by banks in the trading portfolio (Section 340e HGB). Machine Translated by Google - 48 - To number 3 Number 3 changes § 289 HGB and thus the central standard for the management report in the HGB. Regarding letter a Section 289 paragraph 1 sentence 5 HGB is editorially adjusted. Re letter b § 289 paragraph 2 HGB is reduced to the regulations that apply to all companies that are obliged to prepare a management report. For this purpose, Section 289 Paragraph 2 Sentence 1 Number 4 HGB, which contains a special regulation for listed stock corporations, will be spun off and moved to a new Section 289a Paragraph 2 HGB-E. § 289 paragraph 3 HGB remains unchanged and is the basic norm for the disclosure of non-financial aspects. Section 289 Paragraph 4 HGB is moved to a new Section 289a Paragraph 1 HGB-E, as it also contains special regulations for stock corporations and partnerships limited by shares. Section 289 Paragraph 5 HGB remains unchanged and becomes Section 289 Paragraph 4 HGB E. Zu Doppelbuchstabe aa This is a consequential change to the spin-off of Section 289 Paragraph 2 Sentence 1 Number 4 HGB. For double letter bb This is a consequential change to the spin-off of Section 289 Paragraph 2 Sentence 1 Number 4 HGB. To double letter cc Section 289, paragraph 2, sentence 1, number 4 of the HGB will be outsourced to a new Section 289a, paragraph 2 of the HGB-E. Re letter c Section 289 Paragraph 4 of the HGB will be split into a new Section 289a Paragraph 1 of the HGB-E. Regarding letter d This is a consequential change to the spin-off of § 289 Paragraph 4 HGB. To number 4 Number 4 adds new provisions according to § 289 HGB, which on the one hand include the content spun off from § 289 HGB (§ 289a HGB-E) and on the other hand the implementation of the requirements of Directive 2013/34/EU in the version of Directive 2014/95/ EU in relation to the preparation of the non-financial statement by an individual company (§§ 289b to 289e HGB-E). The corporate governance declaration previously regulated in Section 289a HGB will be moved to a new Section 289f HGB-E. Machine Translated by Google - 49 - Re Section 289a HGB-E On Section 289a Paragraph 1 HGB-E The previous content of Section 289 Paragraph 4 HGB on additional information from stock corporations and limited partnerships on shares that use an organized market for shares with voting rights that they have issued will become a new Section 289a Paragraph 1 HGB-E and will be editorially revised. The exceptions to the obligation to report in the notes contained in Section 289 Paragraph 4 Numbers 1, 3 and 9 HGB and the exception to avoiding disadvantages contained in Section 289 Paragraph 4 Number 8 HGB are summarized in Section 289a Paragraph 1 Clause 2 and Clause 4 HGB-E. § 289a paragraph 1 sentence 3 HGB-E contains the previous § 289 paragraph 4 sentence 2 HGB. On Section 289a Paragraph 2 HGB-E § 289a paragraph 2 HGB-E takes up the previous regulation of § 289 paragraph 2 number 4 HGB. The previous § 289a HGB on the declaration on corporate governance becomes a new § 289f HGB-E. On §§ 289b to 289e HGB-E Article 19a of Directive 2013/34/EU as amended by Directive 2014/95/EU introduces a non- financial statement to be included in the management report of certain large companies. The basic standard is to be implemented in § 289b HGB-E. § 289c HGB-E is intended to implement the provisions of the directive on the content of the declaration. § 289d HGB-E regulates the use of frameworks for reporting and § 289e HGB E provides the option to omit certain disadvantageous information in exceptional cases. Re Section 289b HGB-E On Section 289b Paragraph 1 HGB-E Paragraph 1 regulates which companies have to prepare a non-financial statement and adopts the scope of the directive 1:1 (Article 19a paragraph 1 of Directive 2013/34/EU in the version of Directive 2014/95/EU). Corporations and (limited liability) commercial partnerships within the meaning of Section 264a of the German Commercial Code that meet the “requirements of Section 267 (3) sentence 1, paragraphs 4 to 5 of the German Commercial Code (i.e. are “large”) are subject to the reporting obligation if they have more than 500 Employ employees and at the same time are capital market oriented (§ 264d HGB). According to this, the size criteria according to § 267 Paragraph 3 Sentence 1 HGB must actually be met; the fiction according to Section 267 (3) sentence 2 HGB, according to which a capital market-oriented corporation within the meaning of Section 264d HGB is automatically considered “large”, is not applicable in this respect. The capital market orientation requirement corresponds to Article 2 Paragraph 1 Letter a of Directive 2013/34/EU. The recording of credit institutions and insurance companies does not require any regulation at this point, as this should be done as before in the special provisions of Sections 340a and 341a HGB. Reference is made to the explanations of these regulations. The provisions of Sections 289b to 289e HGB-E in accordance with Article 61 of Council Regulation (EC) No. 2157/2001 of October 8, 2001 on the statute for a European company (SE) apply accordingly to the European company. With regard to the threshold of 500 employees, the proposal also follows the directive. Section 267 (4) and (5) HGB apply to the threshold accordingly. This means that, as a rule, two consecutive reporting dates have to be considered Machine Translated by Google - 50 - and in the case of start-ups and transformations, generally only one reporting date is relevant. An extension of the regulations to smaller companies with up to 500 employees does not appear appropriate, at least not for the time being. On the one hand, a review of Directive 2014/95/EU at European level is planned in a few years, on the other hand, the burden on German SMEs should be limited. The gradation of reporting requirements according to company size and according to the expectations of the accounting recipients in accounting law justifies completely dispensing with a non-financial statement for companies other than those recorded under Section 289b (1) HGB-E. It should also be pointed out that all large corporations within the meaning of Section 267 (3) HGB remain obliged to take non-financial matters into account in their management reports (Section 289 (3) HGB). In order to avoid having to report the same non-financial information more than once, the non- financial statement or the separate non-financial report can refer to non-financial information in the management report (section 289b (1) sentence 3 HGB-E). In any case, the content requirements of §§ 289c to 289e HGB-E must be met. On Section 289b Paragraph 2 HGB-E In implementing Article 19a paragraph 3 of Directive 2013/34/EU as amended by Directive 2014/95/EU, a subsidiary is exempted from the obligation to prepare a non-financial statement. The prerequisite is that the subsidiary is included in the group management report of a parent company based in a member state of the European Union or in another contracting state of the Agreement on the European Economic Area and this group management report contains a non- financial declaration that applies to the parent company in accordance with the requirements national law in accordance with Directive 2013/34/EU as amended by Directive 2014/95/EU. If the parent company has prepared and published a separate non-financial group report instead, it is sufficient to include the subsidiary in this report. According to the general principles of commercial accounting law (Section 290 HGB), the decisive factor is whether the parent company can exercise a controlling influence on the subsidiary. Especially in groups with multiple tiers, it can be difficult for the user of the non-financial information to quickly determine the group management report or the separate non-financial group report that contains information about the subsidiary. Therefore, the corporation, which should actually prepare a non-financial statement, should refer to it in its management report and state which parent company prepared the report and with which register or on which website this report was disclosed or published in German or English. As a rule, the group management report will be disclosed by the exempt subsidiary in the Federal Gazette in accordance with Section 264 (3) sentence 1 number 5, sentences 2 and 3 HGB or can be found there in German or English under the subsidiary. Otherwise, a subsidiary that wants to claim the exemption under Section 289b (2) HGB-E must ensure that a German or English translation of the non-financial group statement or the separate non-financial group report is publicly available. The exemption according to § 289b paragraph 2 HGB-E only applies if the subsidiary is obliged to prepare a non-financial statement according to § 289b paragraph 1 HGB-E. Such an obligation does not exist if the subsidiary refrains from preparing a management report in accordance with the general accounting exemption regulations of Section 264 (3) HGB that have been in force for a long time. A management report for the subsidiary that includes a non-financial statement is then already missing Machine Translated by Google - 51 - could be expanded. Article 19a paragraph 1 of Directive 2013/34/EU in the version of Directive 2014/95/EU also ties the obligation to prepare a non-financial statement to the corporation preparing a management report. However, the exemption under Section 289b Paragraph 2 HGB-E is not rendered superfluous by the exemption under Section 264 Paragraph 3 HGB. Rather, cases are conceivable in which a subsidiary has to prepare its own management report because the requirements of Section 264 (3) HGB are not met, but is exempt from the obligation to prepare a non-financial statement in accordance with Section 289b (2) HGB-E is. Section 289b paragraph 2 of the HGB-E (in line with the requirements of Directive 2013/34/EU in the version of Directive 2014/95/EU) provides for other and less strict requirements for exemption from the reporting obligation than Section 264 paragraph 3 HGB. For example, a subsidiary may only refrain from preparing a management report in accordance with Section 264 (3) HGB if the parent company has declared its willingness to assume responsibility for the obligations entered into by the subsidiary up to the balance sheet date in the following financial year. On Section 289b Paragraph 3 HGB-E The Member State option from Article 19a paragraph 4 of Directive 2013/34/EU as amended by Directive 2014/95/EU is to be exercised. A corporation can also fulfill its obligation under Section 289b (1) HGB-E to prepare a non-financial statement in the management report by publishing a separate non-financial report. Sections 289c to 289e HGB-E apply accordingly to the separate non-financial report. The separate non-financial report must contain the same content as is required for the non- financial statement pursuant to Section 289c HGB-E, but it can also – like the non-financial statement – contain additional information. In addition, the separate non-financial report must be published together with the management report in accordance with Section 325 HGB in the Federal Gazette or on the company’s website (Article 19a (4) letters a and b of Directive 2013/34/ EU in the version of Directive 2014 /95/EU). If the corporation makes use of the publication on the Internet, it must comply with the deadline of six months from the reporting date specified in the guideline in accordance with Section 289b (3) sentence 1 number 2 letter b HGB-E and the report for at least ten years years to keep available on the website. In addition, a reference to this publication must be included in the management report when it is published on the Internet. The Internet address under which the publication takes place must be specified. In any case, the publication on the Internet must take place for a certain period of time so that the objectives of Directive 2014/95/EU are achieved. Therefore, based on the requirements for the provision of annual financial reports in the company register in § 24 of the Securities Trading Notification and Insider Directory Ordinance of December 13, 2004 (Federal Law Gazette I p. 3376) in the version of the Act on the Implementation of the Transparency Directive Amendment Directive (Federal Law Gazette 2015 I p. 2029) stipulates a period of ten years for availability. A corporation can therefore make the non-financial information available to the public in three different ways: – the corporation may include a non-financial statement in the management report to be disclosed pursuant to Section 325 (1) sentence 1 number 1 HGB, - the corporation can prepare a separate non-financial report and publish it in the Federal Gazette at the same time as the management report in accordance with Section 325 HGB (Section 289b paragraph 3 sentence 1 number 2 letter a HGB-E) or Machine Translated by Google - 52 - - the corporation can prepare a separate non-financial report and publish it on its website if it refers to it in the management report (section 289b paragraph 3 sentence 1 number 2 letter b HGB-E). If the corporation does not meet the requirements set out in Section 289b (3) HGB-E for the separate non-financial report, for example because it only publishes the separate report after more than six months, it does not have the exemption under Section 289b (3) HGB-E exercised effectively. As a result, the obligation under Section 289b (1) HGB-E to include a non-financial statement in the management report remains. If this declaration is missing, this can trigger administrative offense proceedings in accordance with § 334 HGB-E. On Section 289b Paragraph 4 HGB-E Article 19a paragraph 5 of Directive 2013/34/EU as amended by Directive 2014/95/EU stipulates that the non-financial statement and the separate non-financial report are only to be included in the audit to a limited extent. This requirement is implemented in Section 317 Paragraph 2 Sentence 4 HGB-E, to the explanation of which reference is made. However, if an external review of the content of the non-financial statement or the separate non-financial report is also carried out at the request of the company, a statement about this is important for the users of the report. An external review of the content, in particular by the auditor, can increase confidence in the non-financial information. Therefore, in this case, the audit opinion must be made publicly available together with the non-financial statement or the separate non-financial report. The audit opinion must also contain information that enables an assessment of the audit performance (e.g. audit methods, audit scope, audit measures and the rules and standards on which the audit is based). If the company decides against such a review, it does not have to announce this separately. On § 289c HGB-E The specifications for the content of the non-financial declaration are regulated in a new § 289c HGB-E. The purpose of the regulation is to improve the comparability of non-financial information from companies without departing from the principles of previous financial reporting. Frameworks can be used in accordance with Article 19a Paragraph 1 Subparagraph 5 of Directive 2013/34/EU in the version of Directive 2014/95/EU for orientation as to what should be the subject of such reporting. National, international and European frameworks (e.g. the guidelines of the OECD for multinational companies, GRI G4, the German Sustainability Code, the environmental management and auditing system EMAS, the UN Global Compact, the UN Guiding Principles for Business and Human Rights, the ISO 26000 of the International Organization for Standardization, the International Labor Organisation's Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy) can provide frameworks to which corporations can refer when reporting. However, some of the frameworks only cover partial aspects. The corporations must ensure that their reporting covers all of the reporting elements required by Section 289c HGB-E. Corporations can also prepare the non-financial statement without reference to a framework (Section 289d HGB-E). Section 289c HGB-E provides some mandatory requirements and some exemplary listings. The minimum requirements serve to improve the comparability of reporting without the necessary flexibility of the regulations with regard to different business models, market Machine Translated by Google - 53 - te and countries as well as to frameworks already used by companies for reporting. On Section 289c Paragraph 1 HGB-E Paragraph 1 implements Article 19a paragraph 1 subparagraph 1 letter a of Directive 2013/34/ EU as amended by Directive 2014/95/EU. In practice, a brief description of the business model is already regularly included in the management report and is now being expanded to include the non-financial statement. Since the business model is independent of non-financial aspects, a prominent regulation is appropriate. On Section 289c Paragraph 2 HGB-E Paragraph 2 implements Article 19a(1) first subparagraph of Directive 2013/34/EU as amended by Directive 2014/95/EU with regard to the scope of reporting. Paragraph 2 lists the non-financial aspects provided for in the Directive in the same order, but this should not be understood as establishing a priority. Whether the aspects are treated in the same order in the non-financial statement is left to the companies to decide. If information affects several aspects, there is usually nothing wrong with presenting the information in a coherent manner and, if necessary, referring to the presentation elsewhere in the non-financial statement. Overall, however, the non-financial statement must cover the aspects in full and present them in a clearly structured manner. In order to avoid repetition, the non-financial statement can also refer to corresponding information contained elsewhere in the management report (including the statement on corporate governance). Section 289c (2) HGB-E is intended to include principle-oriented regulations that are more specific than the text of the directive and which are borrowed from the recitals of directive 2014/95/EU. The regulation therefore does not provide for a final checklist that the reporting company only has to fill out. Although such an approach would be easier to compare formally, it would miss the indirect goal of Directive 2014/95/EU, which is to use reporting to encourage companies to recognize and take on their social and ecological responsibility. For this reason, Section 289c (2) HGB-E instead names examples of specific topics within the individual non- financial aspects that the reporting company should deal with and, by emphasizing these topics, provides orientation as to what is important in the reporting fields mentioned from the perspective of the general public commonality could be essential. The concrete examples are not to be understood as mandatory minimum content of the reporting. In any case, the corporation must observe the requirements set out in Section 289c Paragraphs 3 to 4 HGB-E and should therefore always determine what is essential for its business model. Like the guideline, Section 289c (3) HGB-E is based on the fact that it depends on the specific company and that the principles of materiality and proportionality should also apply to non- financial reporting. Numbers 1 to 5 provide further specification for the individual non-financial aspects based on the considerations of Directive 2014/95/EU. Re Section 289c Paragraph 2 Number 1 HGB-E With regard to environmental concerns, certain environmental aspects are listed as examples on the basis of Recital 7 of Directive 2014/95/EU, which may have to be reported on in individual cases. Among other things, a report on the greenhouse gas emissions or water consumption of a corporation, on the air pollution caused by the corporation, on the use of Machine Translated by Google - 54 - renewable and non-renewable energies, about the protection of biological diversity or about details of the current and foreseeable effects of the business activity on the environment. This does not rule out further information, such as the effects of the business activities of the corporation on health and environmental safety or soil pollution, if these are relevant with regard to the specific business activity. In addition, global environmental and climate targets can also be taken into account at the discretion of the reporting company. Insofar as the corporation is also a body subject to the obligation to provide information within the meaning of Section 10 Paragraph 1 in conjunction with Section 2 Paragraph 1 Number 2 and Paragraph 2 of the Environmental Information Act, the resulting obligations under the Environmental Information Act remain unaffected. On Section 289c Paragraph 2 Number 2 HGB-E Number 2 is also based on recital 7 of Directive 2014/95/EU. With regard to employee matters, reporting can include, among other things, compliance with legal provisions and recognized standards or measures taken that affect employee rights and interests. For example, information on measures taken to ensure gender equality, on working conditions, on the implementation of the fundamental conventions of the International Labor Organization (ILO core labor standards), on respect for the rights of employees, to be informed and consulted and, if necessary, to have a say can, on social dialogue, respect for trade union rights, health or safety at work. This can also include information on personnel planning with regard to the required specialists, sickness rates, accident and fluctuation rates. On Section 289c Paragraph 2 Number 3 HGB-E According to number 3, with regard to social issues based on Recital 7 of Directive 2014/95/ EU, there are, for example, information on dialogue at regional and municipal level, for example with local communities such as municipalities, or on ensuring the protection and development of these communities measures taken into account. Re Section 289c Paragraph 2 Number 4 HGB-E According to number 4, the non-financial declaration should also cover the respect for human rights by the corporation. Based on recitals 7 and 8 of Directive 2014/95/EU, for example, information on the avoidance of human rights violations can be considered. On Section 289c Paragraph 2 Number 5 HGB-E With regard to combating corruption and bribery, the examples given in recital 7 should be included in number 5. Corruption and bribery are particularly problematic for the community and are outlawed by many legal regulations. However, it is crucial that this understanding is also practiced in the companies. For this reason, reporting on existing instruments to combat corruption and bribery is an option. This includes the corporation's measures and processes to prevent and uncover corruption and bribery. On Section 289c Paragraph 3 HGB-E In implementation of Article 19a(1)(1)(b) to (e) of the Directive 2013/34/EU in the version of Directive 2014/95/EU regulates which specific Machine Translated by Google - 55 - Questions about the individual non-financial aspects are to be addressed in the non- financial statement. It is important that the information is not just general, but specifically for each non-financial aspect mentioned in paragraph 2 (i.e. for environmental issues, employee issues, social issues, respect for human rights and combating corruption and bribery). On the other hand, the order of the information is not mandatory. There may be reasons for a corporation, for example, to place the presentation of the identified significant risks at the beginning of the description of a concept. Section 289c (3) HGB-E limits – as provided for in Article 19a (1) subparagraph 1 of Directive 2013/34/EU as amended by Directive 2014/95/EU – the information to be provided in the non-financial statement the information required to understand the course of business, the situation and development and the impact on non-financial matters. The term "required" is taken verbatim from Directive 2014/95/EU. This wording deviates from Section 289 Paragraph 3 HGB (“of importance”); However, the justification for the Accounting Law Reform Act (BilReG) makes it clear with regard to Section 289 (3) HGB that this also means the need for understanding (Bundestag printed paper 15/3419, p. 31). The already applicable materiality formula of Section 289 Paragraph 3 HGB is modified in Section 289c Paragraph 3 HGB-E in such a way that the disclosure must also be necessary (“as well as”) to understand the effects of the business activity on non-financial matters. It is therefore not sufficient that the non-financial information is only required to understand the situation and development of the corporation, but not also for the effects of its business activities. Such information already has to be reported in the management report in accordance with Section 289 (3) HGB in connection with non-financial performance indicators. In many cases, however, both conditions will be met to the same extent. Thus, resource-effective developments should not only affect the environment or employees, but also the future development of the corporation itself. Ongoing serious human rights violations, which are promoted by the business activities of the corporation, are likely to entail the risk of a serious loss of image and slumps in sales, which can have an impact on the business model. For better orientation, the corporation can base its reporting on recognized frameworks for reporting (§ 289d HGB-E). The minimum requirements in Section 289c (3) HGB-E are not intended to replace the reporting frameworks that are already used and recognized today. In the longer term, corporations should therefore consider opting for reporting based on one or more recognized frameworks. Re Section 289c Paragraph 3 Number 1 HGB-E Provide a description of the concepts pursued by the corporation. What is meant are explanations of what goals the corporation has set itself in relation to a non-financial aspect, what measures it intends to take over what period of time, how the company management is involved in these measures and what processes, e.g. also for the involvement of employees and other stakeholders it intends to carry out. In accordance with the express requirement of the directive, the regulation also makes it clear that reporting on the concepts also includes the due diligence processes used by the corporation. Machine Translated by Google - 56 - According to § 289c Paragraph 3 Number 1 HGB-E, the corporation only has to report on an existing concept and otherwise to explain why it has no concept (§ 289c Paragraph 4 HGB-E). The regulation does not aim for the corporation to adapt its existing concepts solely for the purpose of reporting. Rather, the corporation must decide for itself how it wants to deal with non-financial issues and whether and how it develops and implements a concept in this regard. For the general public, it is only important that the concept is presented as it is, its main features and what non-financial aspects it relates to are indicated. The users of the information must be informed about the non-financial aspects to which the concept of the corporation refers, because the corporation has to state and justify according to § 289c paragraph 4 HGB- E if it does not pursue a concept with regard to a non-financial aspect. In addition to material information, it is of particular importance for the comparability of the reports how the perception of responsibility is organized in the company management, i.e. whether the board of directors or the management is involved. Article 33 (1) of Directive 2013/34/EU as amended by Directive 2014/95/EU provides for the members of the management, administrative and supervisory bodies to be responsible for fulfilling the non-financial reporting obligation. At the same time, interest groups in the public debate and the development of frameworks for reporting are showing growing interest in early participation. Information on how the corporation identifies relevant interest groups with regard to non-financial matters and involves them in the development of a concept and in the context of reporting also comes into consideration. In particular, if the corporation is significantly dependent on a supply chain for its products or services due to its business model, it should also show the extent to which non-financial issues are addressed in its supply chain. The due diligence processes used by the corporation must also be described as part of the description of the concepts. According to Recital 6 of Directive 2014/95/EU, this also includes, if relevant and proportionate, material information on due diligence processes that the corporation applies in relation to its supply chain and its chain of subcontractors in order to assess existing and identify, prevent and mitigate potential negative impacts. Neither Directive 2014/95/EU nor the German Commercial Code provide for an obligation to carry out special due diligence processes with regard to non-financial aspects. This refers to procedures with which the corporation identifies and fulfills due diligence obligations and duties, in particular determines any risks for individual non-financial aspects and defines measures to contain or eliminate them. It is always about the applied processes. Due diligence processes thus show a certain similarity to processes that are already addressed in Section 289 HGB: There is no difference between due diligence processes and the definition of risk management goals and methods as well as the essential features of the internal control system few intersections. Re Section 289c Paragraph 3 Number 2 HGB-E The reporting must also present the results of the concepts with regard to the non-financial aspects. What is meant primarily are the identifiable effects of the application of the concepts. If a concept has not yet led to identifiable effects, this must also be reported as a result. A more detailed explanation of these results is not mandatory, but should often be of interest to users of the information. Machine Translated by Google - 57 - and therefore make sense. It is therefore compatible with the regulation if a corporation includes additional explanations of the results. Re Section 289c Paragraph 3 Number 3 HGB-E Reporting on the main risks is already the focus of companies' attention. It is also of great importance for the users of the information. Against this background, the wording of Article 19a paragraph 1 subparagraph 1 letter d of Directive 2013/34/EU in the version of Directive 2014/95/EU is to be understood, which attempts to reflect both perspectives equally. Risks arising from the business activities of the corporation for the non-financial aspects specified in § 289c Paragraph 2 HGB-E are to be reported. It should be noted that not only those risks that the corporation itself (consciously) takes are to be reported, but also risks that arise from its own products or services under the conditions of Section 289c Paragraph 3 Number 4 HGB-E of the capital company. In addition, according to Section 289c Paragraph 3 Number 4 HGB-E, risks linked to the corporation’s own business relationships with other companies – including those outside of its own group structure – such as business relationships with suppliers, must also be reported. With regard to these aspects, in particular non-financial risks in the supply chain and the chain of subcontractors, § 289c Paragraph 3 Number 4 HGB-E is the special regulation to § 289c Paragraph 3 Number 3 HGB-E. On the other hand, the concept of risk is limited: only significant risks are to be reported. According to Recital 8 of Directive 2014/95/EU, those risks that are very likely to have serious negative effects on the non-financial aspects or have already led to such effects are material within the meaning of Section 289c (3) number 3. The severity of the impacts should be judged by their extent and intensity. Particularly with regard to risks from business relationships, Section 289c Paragraph 3 Number 4 HGB-E, in line with the guideline, makes the relevance and proportionality of the reporting a further express requirement of the reporting obligation. Section 289c paragraph 3 numbers 3 and 4 HGB-E basically takes up the wording of the directive in order to anchor the compromise formula negotiated at European level in German law. Even if the terms have been defined at European level, the following understanding should be assumed: When reporting on risks, the general principles of financial reporting are to be applied accordingly. In this context, however, the concept of risk cannot be defined solely in terms of accounting law. In contrast to risks in the financial part of the management report, the risks to be reported in accordance with Section 289c Paragraph 3 Number 3 HGB-E are not primarily about risks for the company itself, but about risks for non-financial aspects outside the company - i.e for the environment, for workers and for the other non-financial concerns. However, the reporting is not only subject to the proviso that the risk is significant, but also subject to the proviso of materiality in Section 289c Paragraph 3 HGB-E (in the clause before number 1). According to this, only such information is to be reported as is necessary for understanding the course of business, the business result and the situation of the corporation as well as the effects of its activities. The reference point of materiality differs: § 289c Paragraph 3 Numbers 3 and 4 HGB-E refers to the materiality of the risk, i.e. to the very likely occurrence of serious negative effects, while § 289c Paragraph 3 HGB-E in the clause before number 1 requires the materiality of the information about the risk. As a rule, a significant risk should also include a Machine Translated by Google - 58 - material information when looking at the impact of business activities on non-financial aspects. Section 289c Paragraph 3 HGB-E requires in the clause before number 1 in any case that the information is always important for understanding the course of business, the business result and the situation of the company. The risks caused by the business activities of the corporation for the – albeit non-financial – requirements of its future business activities are primarily relevant for reporting. The corporation should not damage the foundations of its future business through its business activities. If the business activity is limited from the outset to certain non-renewable resources and these resources are available for a shorter time than planned due to disputes about environmental impacts or working conditions, this is also a significant risk for the business activity. On Section 289c Paragraph 3 Number 4 HGB-E Section 289c paragraph 3 number 4 HGB-E regulates the reporting of the main risks associated with the products, services and business relationships of the corporation. According to recital 8, this also includes, if relevant and proportionate, essential information about the supply chain and the chain of subcontractors. The relocation of this definition from Section 289c Paragraph 3 Number 3 HGB-E to a separate number serves to make it easier to read. The basic explanations, such as materiality and the concept of risk, therefore apply accordingly. The supply chain and the chain of subcontractors play a central role in the public discussion about the perception of increased responsibility by companies. Violations of recognized environmental, social and human rights standards often occur in third countries and by contractual partners of reporting companies. It is therefore important for the general public to find out, for example, whether the reporting corporation has set up a supply chain based on its business model and the extent to which non-financial disclosures are made in the supply chain. This requirement is found, with varying degrees of emphasis, in most reporting frameworks. According to Recital 8 of Directive 2014/95/EU, reporting on the supply chain should expressly not lead to excessive administrative burdens for small and medium-sized companies in the supply chain or the chain of subcontractors of the reporting corporation. Companies that are required to report should therefore not pass on their reporting obligation to small and medium- sized companies across the board, but rather decide which information is required of the company on the basis of a risk and materiality assessment. In doing so, reporting entities should also consider whether reporting on the supply chain is proportionate to the requirements for small and medium-sized enterprises. Re Section 289c Paragraph 3 Number 5 HGB-E The non-financial statement must also include the most important non-financial performance indicators that are relevant to the relevant business activity. Section 289c Paragraph 3 Number 5 HGB-E thus ties in with the previous provision in Section 289 Paragraph 3 HGB. However, the new regulation goes further, since the performance indicators are no longer only to be taken into account as part of the analysis of the course of business and business development, but are to be presented independently. Which performance indicators are to be reported depends on the business model of the corporation. With regard to the use of frameworks, reference is made to the introductory explanation of Section 289c HGB-E. Companies should also observe the further processes at European level, since the European Commission, according to Article 2 of the Machine Translated by Google - 59 - Directive 2014/95/EU is intended to develop non-binding guidelines on the method of reporting on non-financial performance indicators, among other things. Examples of non-financial performance indicators are emission values and energy consumption in accordance with the German Accounting Standard DRS 20.107 with regard to environmental concerns. On Section 289c Paragraph 3 Number 6 HGB-E In order to understand the non-financial statement in connection with the annual financial statements, it may be appropriate to refer to individual amounts reported in the annual financial statements and to explain them. In implementation of Article 19a Paragraph 1 Subparagraph 3 of Directive 2013/34/ EU in the version of Directive 2014/95/EU, this disclosure obligation is provided for in Section 289c Paragraph 3 Number 6 HGB-E. The wording “where appropriate” is specified here. Re Section 289c Paragraph 4 HGB-E Section 289c paragraph 4 HGB-E implements Article 19a paragraph 1 subparagraph 2 of Directive 2013/34/EU in the version of Directive 2014/95/EU. He also introduces the “comply or explain” approach in the non-financial statement. The approach is already known today as part of the corporate governance declaration pursuant to Section 161 of the German Stock Corporation Act (AktG) and has proven itself. Companies can decide for or against certain recommendations, but must explain why they decide against a particular recommendation. In the context of § 289c HGB-E, the approach is limited to the question of whether the corporation decides to develop a concept for dealing with a non-financial aspect. If it has a concept, it must present the concept and its results in accordance with Section 289c Paragraph 3 Numbers 1 and 2 HGB-E. If she does not have a concept, she must explain this, stating reasons (§ 289c Paragraph 4 HGB E). As stipulated by Directive 2014/95/EU, the minimum content of the non-financial declaration for each of the aspects specified in § 289c Paragraph 2 HGB-E (environmental concerns, employee concerns, social concerns, respect for human rights and combating corruption and bribery) an explanation is required with regard to existing (or possibly non-existent) concepts. If the corporation has not set up any due diligence processes, an explanation is not required, as Section 289c (4) HGB-E only refers to the complete lack of a concept and not to the lack of parts of a concept in accordance with the guideline can. If the corporation has come to the conclusion that no concept is required with regard to one or more of the non-financial aspects referred to in Section 289c (2) HGB-E, it must explain this, stating reasons. Section 289c (4) HGB-E does not affect risk reporting. Significant risks must also be reported if the corporation has no concept for dealing with one or more non-financial aspects. If the corporation has not identified a material risk for a non-financial aspect, it does not have to explain this; rather, reporting on the material risks is sufficient. Often, however, when presenting the reasons why the corporation does not pursue a concept in an area, it will also have to be addressed whether or not there are significant risks associated with the business activities of the corporation. Re Section 289d HGB-E § 289d HGB-E implements Article 19a paragraph 1 subparagraph 5 of Directive 2013/34/EU in the version of Directive 2014/95/EU. National, international and European frameworks (such as the OECD guidelines for multinational companies, the GRI G4, the German Sustainability Code, the environmental management and audit system EMAS, the UN Global Compact, the UN Guiding Principles on Business and Human Rights, the ISO 26000 of the International Organization for Standardization, the Tripartite Declaration of Principles on Multinational Enterprises and Social Policy Machine Translated by Google - 60 - of the International Labor Organization) can represent frameworks that the corporation can use as a guide when reporting. However, the corporations must ensure that they cover all of the reporting elements required by Section 289c in their reporting. The corporations are not obliged to use a (specific) framework. If they use a framework, this must be stated in the declaration. A specific reporting framework was also considered to improve comparability. On the one hand, however, this is opposed to the wording of Directive 2014/95/EU, which requires the member states to give companies the freedom of choice. On the other hand, it is not yet possible to make a binding decision in favor of a specific framework, since the spectrum of non-financial aspects covered by Directive 2014/95/EU is only covered by some of the existing frameworks, while other frameworks are more specific and, for key target groups, more precise allow information. It is therefore not possible to specify a specific framework that is also binding on the capital market. However, in order to improve the comparability of the reporting, Section 289c Paragraph 2 of the HGB-E provides for more specific information regarding the issues covered. Re Section 289e HGB-E With § 289e paragraph 1 and 2 HGB-E, the option regulated in Article 19a paragraph 1 subparagraph 4 of Directive 2013/34/EU in the version of Directive 2014/95/EU, to allow companies to waive certain disadvantageous information, exercised. It is designed as a company option in paragraph 1, leaving it up to the corporation to also report on a non- mandatory basis. The draft thus passes on the Member States' right to choose from the directive to companies. According to Article 19a Paragraph 1 Subparagraph 4 of Directive 2013/34/EU in the version of Directive 2014/95/EU, responsibility for the decision is based on national legislation. The authorized representative body of the corporation, i.e. the board of directors or the management, is responsible. § 289e paragraph 1 number 2 HGB-E provides for the limitations on the right to vote as required by the directive. It is only possible to omit information if the reporting would cause the corporation a significant disadvantage. The wording of the regulation is based on Section 286 (2) HGB. This parallelism between the two regulations follows from the fact that the English version of Directive 2013/34/EU uses the same expression both in Article 19a Paragraph 1 Subparagraph 4 and in Article 18 Paragraph 2, which implements Section 286 Paragraph 2 HGB ("seriously prejudicial"). A corporation can therefore only refer to the regulation in very limited exceptional cases and refrain from reporting certain information. This applies to the case that information is essential within the meaning of Section 289c Paragraph 3 HGB-E for understanding the course of business, the business result, the position of the corporation and the effects of its activities and therefore would have to be reported in principle, but the information is not so important that its omission completely precludes a balanced overall understanding. Any other information obligations that exist outside of the non-financial statement remain unaffected. If a corporation makes use of Section 289e Paragraph 1 HGB-E and the reasons for not including the information no longer apply at a later date, Section 289e Paragraph 2 HGB-E provides that the corporation will include the information in the next non-financial statement to be prepared got to. This rule is intended to ensure Machine Translated by Google - 61 - that a corporation will not arbitrarily refrain from reporting certain information. At the same time, it should be possible for the users of the information to understand the details afterwards. To number 5 The requirements previously contained in Section 289a HGB for the declaration on corporate governance will be moved to a new Section 289f HGB-E and supplemented at the same time. It should be emphasized that Section 289a HGB was initially only a regulation on the publication of the declaration on corporate governance, the content of which is shaped by Section 161 AktG. The law for the equal participation of women and men in management positions in companies in the private sector and in the public sector of April 24, 2015 (Federal Law Gazette I p. 642) expanded § 289a HGB to a regulation with material content, by also the reporting obligations with regard to the composition of the Management Board, the Supervisory Board and the two management levels below the Management Board of a company and with regard to corresponding targets have been included. These regulations are left unchanged by the draft. However, they must be taken into account when implementing Article 20 paragraph 1 letter g of Directive 2013/34/EU in the version of Directive 2014/95/EU. Regarding letter a Zu Doppelbuchstabe aa The amendment of Section 289f Paragraph 2 Number 5 HGB-E is a consequential amendment to the insertion of Section 289f Paragraph 2 Number 6 HGB-E. For double letter bb Article 20 paragraph 1 letter g of Directive 2013/34/EU in the version of Directive 2014/95/EU stipulates that large capital market-oriented companies also provide information on the diversity concept when filling supervisory, administrative and governing bodies have to do. Diversity is exemplified by some of the criteria mentioned in the policy, including gender. § 289f paragraph 2 number 6 HGB-E adopts this regulation in German law. If the declaration on corporate governance pursuant to Section 289f (2) number 2 HGB-E already contains information on the diversity concept, reference can be made to this information. The scope of application is in accordance with Article 20 paragraph 4 of Directive 2013/34/EU in the version of Directive 2014/95/EU as before for the information on the composition and working methods of the management board and supervisory board of stock corporations within the meaning of Section 289f paragraph 1 HGB-E, i.e. limited in particular to listed stock corporations. According to § 289f paragraph 3 HGB-E, the regulation is to be applied accordingly to large listed partnerships limited by shares. The same applies in accordance with Article 61 of Council Regulation (EC) No. 2157/2001 of October 8, 2001 on the Statute for a European company (SE) (OJ L 294 of November 10, 2001, p. 1) for large listed European companies . Unlike the non-financial declaration, the directive does not set a threshold of 500 employees. The scope of application of Section 289f Paragraph 2 Number 6 HGB-E also differs in the following points from the scope of application of the non-financial statement pursuant to Section 289b Paragraph 1 HGB-E: Firstly, Section 289f Paragraph 2 Number 6 HGB-E does not cover all corporations, but only the legal forms of the joint-stock company, the partnership limited by shares and the European company, in particular not the company with limited liability. Secondly, § 289f paragraph 2 number 6 HGB-E does not oblige all capital market Machine Translated by Google - 62 - oriented corporations within the meaning of Section 264d HGB, but only listed companies and certain capital market-oriented companies specified in Section 289f Paragraph 1 HGB-E. Re letter b Section 289f paragraph 5 HGB-E implements Article 20 paragraph 1 letter g sentence 2 of Directive 2013/34/EU in the version of Directive 2014/95/EU and introduces the “comply or explain” approach, also with regard to the diversity concept . To number 6 The changes in §§ 291 and 292 HGB are consequential changes to the shift of § 315a HGB into a new § 315e HGB-E. To number 7 The changes in Section 294 (3) HGB extend the submission and verification obligations of subsidiaries to their parent company to include separate non-financial reports within the meaning of Section 289b (3) HGB-E. To number 8 The amendment of Section 314 Paragraph 1 Number 12 HGB serves to more closely align the German provisions with Article 28 Paragraph 1 in conjunction with Article 16 Paragraph 1 Letter c of Directive 2013/34/EU and extends the disclosure obligation to all financial instruments measured at fair value . See also § 285 number 20 HGB-E. To number 9 The changes in the area of the group management report (section 315 HGB) correspond in principle to the changes in the area of the management report. With the predominantly systematic changes, the structure of Section 315 HGB is intended to be more closely based on the structure of Section 289 HGB and at the same time simplified by the spin- off of the special provisions that only apply to certain parent companies. The ninth title, previously limited to one paragraph (§ 315 HGB), is now divided into several paragraphs, especially since the implementation of Directive 2014/95/EU requires additional regulations. Regarding letter a Zu Doppelbuchstabe aa The shift from Section 315 Paragraph 1 Sentence 4 HGB to a new Section 315 Paragraph 3 HGB-E serves to emphasize the non-financial performance indicators and the systematic alignment with Section 289 HGB. It remains crucial that the non-financial performance indicators, insofar as they are relevant to management, are to be included in the analysis of the course of business in the context of the management report. For double letter bb The change in Section 315 Paragraph 1 Sentence 5 HGB is of an editorial nature. Machine Translated by Google - 63 - Re letter b The amendments to Section 315 (2) of the German Commercial Code (HGB) primarily serve to outsource the regulations on disclosures that are only to be made by listed stock corporations or capital market-oriented companies. In the future, these regulations will be contained in § 315a Paragraph 2 and § 315 Paragraph 4 HGB-E. Material changes are not intended as a result. Zu Doppelbuchstabe aa This is a consequential change to the spin-off of § 315 Paragraph 2 Number 4 and 5 HGB. For double letter bb This is a consequential change to the spin-off of § 315 Paragraph 2 Number 4 and 5 HGB. To double letter cc With the regulation, § 315 paragraph 2 number 4 and 5 HGB is outsourced. It's just a change in system. Material changes are not intended as a result. To double letter dd A new sentence is added to Section 315 (2) HGB, according to which parent companies that are stock corporations must refer to the information to be provided in the notes pursuant to Section 160 (1) sentence 1 number 2 AktG in the group management report. This serves to implement Article 29 Paragraph 1 in conjunction with Article 19 Paragraph 2 Letter c of Directive 2013/34/EU. Re letter c Section 315 (3) HGB-E includes the regulation of non-financial performance indicators analogous to Section 289 (3) HGB. Section 315 (4) HGB-E enshrines the special disclosure requirement for capital market-oriented corporations that was previously included in Section 315 (2) number 5 HGB. Material changes are not intended by this redesign. Regarding letter d The previous Section 315 Paragraph 3 HGB becomes Section 315 Paragraph 5 HGB-E through the addition of Paragraphs 3 and 4. Re letter e The previous paragraph 4 of § 315 HGB will be moved to a new § 315a paragraph 1 HGB-E and the previous paragraph 5 to a new § 315d HGB-E. Material changes are not intended by this redesign. The repeal of the previous paragraphs 4 and 5 is a consequential change to the systematic shift. Machine Translated by Google - 64 - To number 10 According to Section 315 HGB, new regulations are added which, on the one hand, include the regulations for certain parent companies that have been outsourced from Section 315 HGB (Section 315a HGB E) and, on the other hand, the implementation of Directive 2013/34/EU in the version of Directive 2014/95/EU with regard to non-financial reporting at group level. The previous Section 315 Paragraph 5 HGB on the non-financial group declaration on corporate governance will be transferred to a new Section 315d HGB-E. On § 315a HGB-E Paragraph 1 of the new Section 315a HGB-E includes the additional requirements previously contained in Section 315 Paragraph 4 HGB for parent companies that operate an organized market within the meaning of Section 2 Paragraph 7 of the Securities Acquisition and Takeover Act by issuing shares with voting rights in claim. The spin-off is intended to improve the readability of Section 315 HGB. At the same time, minor editorial changes are made. Section 315a (2) HGB-E enshrines the special disclosure requirement for listed corporations that was previously included in Section 315 (2) number 4 HGB. Material changes are not intended by these transformations. On § 315b HGB-E Section 315b HGB-E serves to implement Article 29a of Directive 2013/34/EU in the version of Directive 2014/95/EU and regulates the scope of application of the obligation to provide a non- financial statement at group level. Section 315b HGB-E largely follows the structure of Section 289b HGB-E and essentially only differs where the guideline or the reference to group level make deviations necessary. The requirements for the non-financial group declaration and the separate non-financial group report are based on the law of the Federal Republic of Germany, even if some of the subsidiaries included are based abroad. On Section 315b Paragraph 1 HGB-E Parent companies that are themselves capital market-oriented corporations within the meaning of Section 264d HGB (Section 315b Paragraph 1 Sentence 1 Number 1 HGB-E) are required to report. The other requirements for the reporting obligation are to be determined at the group level: On the one hand, the sales revenue or the balance sheet total when viewed as a group must exceed the threshold values regulated in Section 293 Paragraph 1 HGB (Section 315b Paragraph 1 Clause 1 Number 2 Letter a HGB-E) . A reporting obligation according to Section 315b Paragraph 1 HGB-E only exists if, when adding the values of the parent company and the subsidiaries to be included, at least two of the three size criteria according to Section 293 Paragraph 1 Clause 1 Number 1 HGB (gross method) or on a consolidated basis, at least two of the three size criteria according to Section 293 Paragraph 1 Sentence 1 Number 2 HGB (net method) are exceeded. Which of the methods is used depends on how the parent company exercises its right to choose. On the other hand, the companies to be included in the consolidated financial statements, including the parent company, must have more than 500 employees on average over the year (section 315b (1) sentence 1 number 2 letter b HGB-E). Section 267 paragraphs 4 to 5 apply accordingly to the threshold values. There is no reporting obligation pursuant to Section 315b Paragraph 1 HGB-E if the requirements of Sections 291 and 292 HGB are met. In this case, the parent company is exempt from the obligation to prepare a group management report, so that - just as in the context of Section 289b Paragraph 1 HGB-E with regard to the exemption regulation in Section 264 Paragraph Machine Translated by Google - 65 - sentence 3 HGB - the factual requirements of § 315b paragraph 1 HGB-E are not met. In this respect, reference is made to the justification for Section 289b Paragraph 1 HGB-E. In accordance with the regulation in § 315 Paragraph 5 HGB-E (previously: § 315 Paragraph 3 HGB) for the management report, § 315b Paragraph 1 Clause 2 HGB-E clarifies that also for the non-financial group statement (and in connection with § 315b Paragraph 3 HGB-E for the separate non-financial report) a summary analogous to Section 298 (2) HGB is possible. This serves to avoid duplicate information, references and repetitions. That The parent company may therefore combine its own non-financial statement with the non- financial group statement under the conditions laid down in Section 298 (2) HGB. In particular, in corresponding application of Section 298 (2) sentence 3 HGB, the combined statement must state which information relates to the group and which relates to the parent company. In the non-financial group declaration or in the separate non-financial group report, reference can also be made to non-financial information in the group management report to avoid duplication (section 315b (1) sentence 3 HGB-E). In this respect, reference is made to the justification for § 289b paragraph 1 HGB-E. On Section 315b Paragraph 2 HGB-E In implementation of Article 29a paragraph 3 of Directive 2013/34/EU as amended by Directive 2014/95/EU, a parent company is exempt from the reporting obligation if it is also a subsidiary of another parent company and the exempt parent company and its subsidiaries are included in the non-financial Statement of this other parent company are included. Another requirement is that the non-financial statement of the other parent company meets the requirements of the national law applicable to the other parent company in accordance with Directive 2013/34/EU as amended by Directive 2014/95/EU. Without a non-financial declaration at the highest group level, there is therefore no exemption under Section 315b Paragraph 2 HGB-E. At the same time, Section 315b (2) sentence 2 HGB-E clarifies that the exempting effect also applies to a separate non-financial group report prepared by the other parent company if the same content-related requirements are met. It can be assumed that the requirements of Section 291 HGB, which is based on Article 23 Paragraphs 3 and 4 of Directive 2013/34/EU, will often be met at the same time. However, § 315b Paragraph 2 HGB-E goes beyond § 291 HGB by waiving the narrower requirements of § 291 HGB (e.g. the consent of the shareholders to the exemption). As with Section 289b Paragraph 2 Sentence 3 HGB-E, Section 315b Paragraph 2 Sentence 3 HGB-E serves to make it easier for users to find the group management report that contains information about the exempted subsidiary. On Section 315b Paragraph 3 HGB-E Section 315b (3) HGB-E exercises the option under Article 29a (4) of Directive 2013/34/EU as amended by Directive 2014/95/EU to permit a separate non-financial group report. The regulation is a mirror image of the regulation in § 289b Paragraph 3 HGB-E, so that the explanations in the justification apply there accordingly. Machine Translated by Google - 66 - On Section 315b Paragraph 4 HGB-E § 315b Paragraph 4 HGB-E on the publication of an audit opinion on a voluntary review of the non-financial statement or the separate report corresponds to § 289b Paragraph 4 HGB-E. Reference is made to the justification for this regulation. On § 315c HGB-E Section 315c HGB-E contains the specifications for the content of the non-financial group statement. Essentially, reference is made to the mirror-image requirements for the non-financial statement in Sections 289c to 289e. Section 315c (2) HGB-E makes it clear, however, that the materiality of non-financial information must be determined in the context of the non-financial group statement with a view to the situation and development of the group as a whole. On § 315d HGB-E Section 315 Paragraph 5, which was first introduced by the BilRUG, will be transferred to a new Section 315d HGB-E in order to make it clearer that the corporate governance declaration can also stand outside of the group management report, and in this respect also to bring about a systematic approximation of the mirror-image regulation for the corporate governance declaration. At the same time, it is made clear that, as already intended by the BilRUG, the provision also applies to partnerships limited by shares as the parent company. Articles 29 and 20 paragraph 1 letter g of Directive 2013/34/EU in the version of Directive 2014/95/EU require the addition of the requirements for the corporate governance statement, which is already mandatory today, to include the obligation to disclose the diversity concept, which is set out in Section 315d HGB- E is ensured by reference to § 289f HGB-E. The contents of the corporate governance declaration continue to result from Section 161 AktG in conjunction with the recommendations of the German Corporate Governance Code and the other requirements of Section 289f HGB-E. To number 11 In order to create the necessary space for the regulations on the group management report, Section 315a HGB becomes a new Section 315e HGB-E. To number 12 The amendments to Section 317 (2) HGB serve to implement Article 19a (5), Article 20 (3) and Article 29a (5) of Directive 2013/34/EU in the version of Directive 2014/95/EU and already supplement it today existing regulations on the corporate governance statement. In accordance with section 317 (2) sentence 4 HGB-E, the auditor checks whether the non- financial statement or group statement or the separate non-financial report or group report has been submitted. In order to avoid any practical problems of the auditor with regard to a separate non-financial report or group report published at a later date in accordance with Section 289b (3) sentence 1 number 2 letter b HGB-E, a supplementary audit is carried out in such cases - and in the event that the report is not submitted within six months of the balance sheet date, the supplement to the auditor's report is provided in accordance with section 316 (3) sentence 2 HGB. With regard to the effectiveness of the original auditor's report, the same principles apply as in the context of Section 316 (3) HGB, so that the original auditor's report remains valid in principle in the event of the subsequent audit. Machine Translated by Google - 67 - There is no further examination of the requirements of Sections 289b to 289e and Sections 315b and 315c HGB-E. In addition, as is already the case today, the auditor checks whether the information required in Section 289f Paragraph 2 and Section 315d HGB-E has been provided (Section 317 Paragraph 2 Clause 6 HGB-E). To number 13 The submission obligations of the Executive Board or the management according to Section 320 Paragraph 1 and Paragraph 3 HGB are extended to separate non-financial reports and group reports. This enables the auditor to check the existence of the separate non-financial reports and group reports in accordance with Section 317 Paragraph 2 Clause 4 HGB-E. A corresponding express regulation with regard to the non-financial statement and group statement is not necessary because these are part of the management report or group management report to be submitted according to Section 320 HGB. To number 14 Regarding letter a The changes in Section 325 Paragraphs 1 and 2 HGB are editorial adjustments to the wording in Section 335 HGB. Re letter b The change in § 325 Paragraph 2a Sentence 1 HGB is a consequential change to the shift of § 315a HGB into a new § 315e HGB-E. The amendment to section 325 (2a) sentence 4 HGB serves to clarify that the management report must also be disclosed in the case of exempting disclosure of individual financial statements prepared in accordance with international accounting standards (IFRS). The company's decision to use IFRS does not mean that it does not have to prepare a management report. The obligation to include a non-financial statement in the management report also remains unaffected. Re letter c This is an editorial adjustment to the wording in § 335 HGB. To number 15 The provisions of §§ 331 ff. HGB have become unclear due to numerous changes. To this end, several titles are to be set up in the Sixth Subsection. The provisions of §§ 331 to 334 HGB are to be summarized in a first title "Penal and fine provisions". The provisions on administrative fines are to be summarized in a second title. The insertion of the title only improves clarity and does not result in any material change. To number 16 Article 51 of Directive 2013/34/EU calls for effective, proportionate and dissuasive sanctions for violations of the directive and thus also includes the changes made by Directive 2014/95/EU. Accordingly, the penal provisions for misrepresenting the circumstances of the corporation or the group must also be extended to the non-financial statement and the separate non-financial report on the one hand and to the reports at group level on the other. For that who made the changes in Section 331 Numbers 1 and 2 HGB. The accountability Machine Translated by Google - 68 - meets members of the body authorized to represent or the supervisory board and in the case of intentionally misrepresenting or concealing the circumstances. Regarding letter a The amendment to Section 331 Number 1 HGB serves to extend the criminal liability of the members of the body authorized to represent or the Supervisory Board beyond the incorrect presentation of the circumstances of the corporation in the management report to the presentation in the non-financial statement and in the separate non- financial report. Re letter b The amendment of § 331 number 2 HGB-E serves to mirror the extension of criminal liability at group level. Re letter c This is a consequential change to the change in § 315 Paragraph 1 HGB. To number 17 Regarding letter a In addition to the penal provisions, the fines of Section 334 HGB based on Article 51 of Directive 2013/34/EU are extended to the non-financial statement and the separate non-financial report as well as to the statements and reports at Group level. Section 334 (1) nos. 3 and 4 of the HGB-E stipulates when a violation of the specified statutory provisions on the preparation of management and group management reports, including the non-financial statements (group statements) contained therein and on the preparation of separate non-financial reports (group reports) is illegal. Section 334 HGB-E does not apply to banks and insurance companies, as Section 340n and Section 341n HGB contain special provisions (Section 334 (5) HGB). An administrative offense pursuant to Section 334 Paragraph 1 Number 3 or 4 HGB-E is also present if, in the case of Section 289b Paragraph 3 HGB-E, the separate non- financial report is neither published at the same time as the management report in the Federal Gazette nor within the intended period of six months on the website of the corporation. In this case, the requirements set out in Section 289b (3) HGB-E for exemption from the obligation to include a non-financial statement in the management report are not met, resulting in a violation of Section 289b (1) HGB-E in the preparation of the management report is to be assumed. Re letter b At the same time, as part of the implementation of Directive 2004/109/EC in the version of Directive 2013/50/EU, the range of fines in Section 334 (3) HGB-E for capital market- oriented companies has been increased by violations of the content-related regulations for the preparation of annual and consolidated financial statements as well as management and group management reports, to threaten sanctions comparable to violations of disclosure regulations. The term total sales is defined for the purposes of Section 334 HGB in Section 334 Paragraph 3b HGB-E; In terms of content, the provision of § 335 Paragraph 1b HGB-E provided in the law for the implementation of the Transparen Machine Translated by Google - 69 - When determining the amount of the fine, the Federal Office of Justice must take into account all relevant circumstances, including the seriousness of the violation (Article 28c of Directive 2004/109/EC as amended by Directive 2013/50/EU). To number 18 The insertion of a second title in front of the fine regulations serves to improve clarity and does not cause any material changes. For the rest, reference is made to the explanation for the insertion of a first title. To number 19 Regarding letter a This is an editorial cleanup. Re letter b The replacement of the words "legal entity or association of persons" with the word "corporation" in § 335 paragraph 1a sentence 1 number 2 HGB-E is an editorial adjustment. Material changes are not intended as a result. Re letter c Replacing the words "legal person or association" with the word "corporation" is an editorial adjustment. The addition to the reference to Section 290 is of a clarifying nature. Material changes are not intended as a result. To number 20 The extension of the sanctions provisions to commercial partnerships within the meaning of Section 264a HGB regulated in Section 335b HGB and the regulation in Section 335c HGB on notifications to the auditor oversight body are incorporated into a new third title. This also serves to improve the clarity of the regulations; reference is made to the explanation of the insertion of a first title. To number 21 For the cooperatives, the amendments to Section 336 (2) HGB-E consist of consequential amendments to split Section 289 HGB into two provisions (Sections 289 and 289a HGB-E) and to move Section 289a HGB to Section 289f HGB. In addition, the regulations referred to for the preparation of the management report have been expanded. Regarding letter a In principle, cooperatives have to apply the requirements that apply to corporations of the same size category, provided there are no special features regulated for the legal form of the cooperative in Sections 336 to 339 of the German Commercial Code (HGB). The background to this equality is that the legal form of a cooperative can be used for companies in the same way as legal forms of corporations and the choice of one or the other legal form should not be favored by different requirements of commercial accounting law. Machine Translated by Google - 70 - With regard to non-financial reporting, there is therefore a need to put cooperatives and corporations on an equal footing. § 336 paragraph 2 sentence 1 number 2 HGB-E therefore assigns the corresponding validity of §§ 289b to 289e HGB-E an. Re letter b This is a consequential change to the shift from Section 289a HGB to Section 289f HGB-E. To number 22 Article 19a paragraph 1 and Article 2 paragraph 1 letter b of Directive 2013/34/EU as amended by Directive 2014/95/EU require that certain large credit institutions in the legal form of a corporation also have to prepare a non-financial statement. At the same time, Council Directive 86/635/EEC of December 8, 1986 (OJ L 372 of December 31, 1986, p. 1) (Directive 86/635/EEC) stipulates that credit institutions with other legal forms must also comply with the accounting requirements applicable to corporations be applied insofar as Directive 86/635/EEC does not contain any special regulations. The aim of these regulations is to prevent credit institutions from having to compete on the basis of their legal form. All credit institutions should therefore be subject to the same legal accounting requirements if they belong to the size class defined by Directive 2014/95/EU. With the new Section 340a Paragraph 1a HGB-E, credit institutions that employ more than 500 people and at the same time exceed at least one of the size criteria applicable to large corporations (analogous to Section 267 Paragraph 3 Clause 1 HGB) (total assets over 20 million euros or sales exceeding EUR 40 million), required to prepare a non-financial statement. The terms number of employees and balance sheet total are determined using the definitions in Section 267 Paragraph 4a and 5 HGB. In addition, § 340a Paragraph 1a HGB-E stipulates that § 267 Paragraph 4 HGB is to be applied accordingly, which usually provides for a consideration of two consecutive financial years if the bank is not newly founded or arose from a transformation. Credit institutions that belong to the size class defined in this way must include a non-financial statement in their management report. The exemptions of § 289b paragraph 2 and 3 HGB-E, the regulation of § 289b paragraph 4 HGB-E and the content requirements of §§ 289c to 289e HGB-E apply accordingly. Reference is made to the explanations of these regulations. Section 340a paragraph 1b HGB-E provides, in implementation of Article 20 paragraph 1 letter g of Directive 2013/34/EU in the version of Directive 2014/95/EU, also in conjunction with Directive 86/635/EEC, that Under certain conditions, credit institutions must include information on their diversity concept in their corporate governance statement. In accordance with Directive 2014/95/EU, this requirement for credit institutions is limited to certain stock corporations and limited partnerships, in particular those listed on the stock exchange (legal reference to Section 289f HGB-E) and at the same time it is made clear that small and medium-sized credit institutions - as in Within the scope of § 289f paragraph 2 number 6 HGB-E - are excluded. In contrast to Section 340a Paragraph 1a HGB-E, the number of employees is not of central importance, rather the size criteria of Section 267 HGB are to be applied in principle. Machine Translated by Google - 71 - To number 23 The changes in Section 340i Paragraph 2 HGB-E are, on the one hand, consequential changes to the shift from Section 315a HGB to Section 315e HGB-E and, on the other hand, serve to correct an editorial error in Section 340i Paragraph 2 Clause 4 HGB within the framework of the BilRUG. Mirroring the accounting at company level (§ 340a HGB-E), § 340i paragraph 5 HGB-E provides for an addition to the regulations for the group accounting of the banks. Article 29a of Directive 2013/34/EU in the version of Directive 2014/95/EU also applies to credit institutions, so that a non-financial group statement must be prepared. Parent companies that are themselves credit institutions are required to report. The other requirements for the reporting obligation are to be determined at group level: On the one hand, the sales revenue or the balance sheet total must exceed the thresholds regulated in Section 293 Paragraph 1 HGB (Section 340i Paragraph 5 Sentence 1 Number 1 HGB-E) when viewed as a group. A reporting obligation pursuant to Section 340i (5) in conjunction with Section 315b (1) HGB-E therefore only exists if the group meets at least two of the three size criteria pursuant to Section 293 (1) sentence 1 number 1 or at least two of the three size criteria pursuant to Section 293 (1). Sentence 1 number 2 HGB are exceeded. Which of the methods is used depends on how the parent company exercises its right to choose. On the other hand, the companies to be included in the consolidated financial statements must employ a total of more than 500 employees on average over the year (section 340i (5) sentence 1 number 2 HGB E). § 340i HGB-E refers to §§ 315b and 315c HGB-E for further regulations. Reference is made to the explanation of these regulations. Section 340i paragraph 6 HGB-E provides for the implementation of Article 29 paragraph 1 in conjunction with Article 20 paragraph 1 letter g of Directive 2013/34/EU in the version of Directive 2014/95/EU and in conjunction with Directive 86/ 635/EEC that certain credit institutions, in particular listed stock corporations and partnerships limited by shares (legal reason reference to § 315d in conjunction with § 289f paragraph 2 number 6 HGB-E) as the parent company have to include information on the diversity concept in the group declaration on corporate governance. In accordance with Directive 2014/95/EU, it is also regulated for credit institutions that small and medium-sized credit institutions are exempt. The size criteria of Section 267 HGB are to be applied accordingly. To number 24 Regarding letter a The changes in the fines in Section 340n (1) HGB are mirror images of the amendment in Section 334 HGB and also include violations by members of the authorized body or managers of credit institutions and their branches with regard to the preparation of the non-financial statement or a separate non-financial statement report and the corresponding reporting at group level. Re letter b The change in Section 340n (3) HGB is a mirror image of the change in Section 334 (3) HGB, for which reference is made to the explanation. Insofar as the upper limit of the fine is determined by the total turnover, the total turnover is defined in accordance with Section 340a Paragraph 1b in conjunction with Section 334 Paragraph 3b HGB-E. Machine Translated by Google - 72 - To number 25 Article 19a paragraph 1 and Article 2 paragraph 1 letter c of Directive 2013/34/EU as amended by Directive 2014/95/EU require that certain large insurance companies in the legal form of a corporation also have to prepare a non-financial statement. At the same time, Council Directive 91/674/EEC of December 19, 1991 (OJ L 374 of December 31, 1991, p. 7) (Directive 91/674/EEC) stipulates that insurance companies with other legal forms must also comply with the accounting requirements applicable to corporations apply unless Directive 91/674/EEC contains any special regulations. The aim of these regulations is to prevent insurance companies from competing based on their legal form. Therefore, in principle, all insurance companies should be subject to the same accounting requirements if they belong to the size class provided for by Directive 2014/95/EU. With the new Section 341a Paragraph 1a HGB-E, insurance companies that employ more than 500 people and at the same time exceed at least one of the size criteria applicable to large corporations (analogous to Section 267 Paragraph 3 Clause 1 HGB) (total assets over 20 million euros or sales of more than 40 million euros), obliged to prepare a non-financial statement. With regard to the information on the diversity concept in the context of the declaration on corporate governance, Section 289f HGB-E also applies to insurance companies, although small and medium-sized insurance companies are excluded in accordance with the directive. Reference is made to the explanation of the comparable situation at banks in relation to section 340a (1b) HGB-E. To number 26 The changes in Section 341j Paragraph 1 HGB-E are consequential changes to the shift from Section 315a HGB to Section 315e HGB-E. The addition of a new paragraph 4 to Section 341j HGB serves to include the obligation of insurance companies that are parent companies to prepare a non-financial group declaration. The regulation corresponds to the parallel regulation for credit institutions in § 340i paragraph 5 HGB-E. Reference is made to the explanation of this regulation. The new § 341j Paragraph 5 HGB-E provides for a regulation on the scope of application of the requirements for reporting on the diversity concept, parallel to the same as for credit institutions. Reference is made to the explanation of § 340i Paragraph 6 HGB-E. To number 27 Regarding letter a The change in the fines in Section 341n Paragraph 1 HGB is a mirror image of the change in the fines in Section 334 HGB. Re letter b Section 341n (3) HGB on the framework of fines will be adjusted to the amendments to Section 334 (3) HGB-E, the reasons for which are referred to. Insofar as the maximum limit of the fine is determined in relation to the total turnover, the total turnover is defined in Section 341n Paragraph 3b HGB-E in accordance with Section 341a Paragraph 1b in conjunction with Section 334 Paragraph 3b HGB-E. Machine Translated by Google - 73 - To number 28 The change in Section 342 Paragraph 1 Sentence 1 Number 4 HGB is a consequential change to the shift from Section 315a HGB to a new Section 315e HGB-E. Re Article 2 (Amendment of the Introductory Act to the Commercial Code - EG HGB) To number 1 With the amendment of Article 75 Paragraph 1 Sentence 2 and Paragraph 2 Sentence 2 EGHGB an editorial error is corrected. To number 2 In implementation of Article 4 Paragraph 1 Subparagraph 2 of Directive 2014/95/EU, it is stipulated that the amended regulations are to be applied for the first time to annual and consolidated financial statements as well as management and group management reports prepared for a financial year beginning after December 31, 2016 will. At the same time, it regulates that the previous regulations are to be applied for the last time to the fiscal year beginning before January 1, 2017. The transitional regulation allows companies to apply the new regulations for the financial year beginning after the law has come into force, so that the information required for the reporting obligations can be made available at the end of the financial year without significant additional effort. This is intended to limit the bureaucratic burden on companies. On Article 3 (Amendment to the Business Register Ordinance) To number 1 An editorial error has been corrected in Article 10, Paragraph 2, Sentence 2 of the Business Register Ordinance. To number 2 An editorial mistake has been corrected in Article 15 Paragraph 1 Sentence 1 of the Business Register Ordinance. On Article 4 (Amendment of the Securities Trading Act – WpHG) To number 1 This is a consequential change to the addition of Section 50 WpHG. To number 2 The amendment of Section 37w Paragraph 3 Sentence 3 WpHG is a consequential amendment to the shift from the previous Section 315a HGB to a new Section 315e HGB-E. To number 3 The amendment to section 37y number 1 WpHG is a consequential amendment to the amendment to section 315 paragraph 1 HGB. The amendment of section 37y number 2 sentence 2 WpHG is a consequential change to the shift of the previous section 315a HGB into a new section 315e HGB-E. Machine Translated by Google - 74 - To number 4 The new Section 50 of the WpHG provides for transitional provisions for the changes to the WpHG and is formulated in a mirror-inverted manner to the new article of the EGHGB. The changes will take effect for the first time for annual and consolidated financial statements as well as management and group management reports that are prepared for fiscal years beginning after December 31, 2016. For the rest, reference is made to the explanation of the EGHGB. On Article 5 (Amendment of the Disclosure Act – PublG) To number 1 The amendments to Section 11 Paragraph 6 Sentence 1 Number 2 and Sentence 2 PublG are consequential amendments to the shift from the previous Section 315a HGB to a new Section 315e HGB-E. To number 2 The change in the minimum denomination from 50,000 euros to 100,000 euros in Section 13 (1) sentence 2 second half-sentence PublG in the draft version (PublG-E) serves to clean up an editorial error resulting from subsequent changes to the implementation of Directive 2013/50/EU of the European Parliament and of the Council of 22 October 2013 amending Directive 2004/109/EC of the European Parliament and of the Council on the harmonization of transparency requirements in relation to information about issuers whose securities are admitted to trading on a regulated market, Directive 2003/ 71/EG of the European Parliament and of the Council regarding the prospectus to be published when securities are offered to the public or admitted to trading, as well as Directive 2007/14/EG of the Commission with implementing provisions for certain provisions of the Transparency Directive (Transpa limit policy change policy). To number 3 The change of § 17 number 1a PublG is a consequential change to the shift of the previous § 315a HGB into a new § 315e HGB-E. To number 4 The amendment of Section 20 Paragraph 1 Number 4 PublG is a consequential amendment to the shift of the previous Section 315 Paragraph 1 Clause 4 HGB to a new Section 315 Paragraph 3 HGB- E. To number 5 The new § 22 paragraph 7 PublG-E provides for transitional provisions for the changes to the PublG and is formulated as a mirror image of the new article of the EGHGB. The changes will therefore take effect for the first time for annual and consolidated financial statements as well as management and group management reports that are prepared for fiscal years beginning after December 31, 2016. For the rest, reference is made to the explanation of the EGHGB. On Article 6 (Amendment of the Stock Corporation Act) To number 1 The amendment to Section 170 (1) of the AktG serves to implement Article 33 of Directive 2013/34/ EU in the version of Directive 2014/95/EU. After that, the members Machine Translated by Google - 75 - the administrative, management and supervisory bodies of the corporation to ensure, within the scope of their responsibilities, that the company's accounts comply with the requirements of Directive 2013/34/EU in the version of Directive 2014/95/EU. In order to enable the Supervisory Board to also audit the separate non-financial report and the separate non-financial group report in order to fulfill its control function pursuant to Section 111 AktG and its auditing obligation pursuant to Section 171 AktG, these reports, if they have been prepared, must also be submitted to it without delay. This also applies if these are made accessible to the public in accordance with section 289b subsection 3 sentence 1 number 2 letter b or in accordance with section 315b subsection 3 sentence 1 number 2 letter b. The non- financial statement or non-financial group statement is part of the management report or group management report and is therefore already covered by Section 170 (1) sentence 1 AktG. To number 2 In Section 171 (1) AktG, the amendment to Section 170 (1) AktG is supplemented by the fact that the Supervisory Board must also examine the separate non-financial report and the separate non-financial group report. This change also serves to implement Article 33 of Directive 2013/34/EU in the version of Directive 2014/95/EU. §§ 170, 171 AktG according to § 52 paragraph 1 of the law concerning limited liability companies (GmbHG) apply accordingly to the limited liability company if it has a supervisory board. To number 3 The change in Section 176 AktG is a consequential change to the spin-off of Section 289 (4) HGB into a new Section 289a (1) HGB-E and the spin-off of Section 315 (4) HGB into a new Section 315a (1). HGB-E. To number 4 The amendment to Section 237 Paragraph 3 Number 2 AktG is a correction of an editorial error. The previous conceptual limitation to another revenue reserve (Section 266 (3) A. III. 4. HGB) is too narrow. The new wording clarifies that the other reserve may not already be tied up, i.e. it may not be covered by a profit transfer agreement pursuant to Section 291 (1) AktG or a profit appropriation resolution pursuant to Section 174 AktG, nor may it already be earmarked for another use. To number 5 Section 283 number 10 AktG adds that the provisions applicable to the management board of the stock corporation regarding the presentation and examination of the separate non-financial report and the separate non-financial group report apply accordingly. This is intended to make it clear that the amendments made in Sections 170 and 171 AktG also apply accordingly to the partnership limited by shares if it prepares a separate non-financial report or a separate non- financial group report. Reference is made to the justification for these regulations. On Article 7 (Amendment of the Introductory Act to the Stock Corporation Act) The amendment of Sections 170, 171, 176, 237 and 283 AktG requires a new transitional provision which is to include Section 26... [insert: next letter addition that becomes free upon promulgation] of the Introductory Act to the Stock Corporation Act. The transitional provision is formulated as a mirror image of the transitional provision in the EGHGB. Machine Translated by Google - 76 - Article 8 (Amendment of the Law on Cooperatives) To number 1 This is a consequential change to the addition of Section 170 of the Cooperatives Act. To number 2 In Section 38 Paragraph 1b, mirroring the change in Section 171 Paragraph 1 AktG, it is added that the Supervisory Board must also examine the separate non-financial report. To number 3 The change in Section 38 of the Cooperatives Act requires a new transitional provision that is formulated as a mirror image of the transitional provision in the EGHGB. On Article 9 (amendment to other federal law) To paragraph 1 The amendment to Article 23 of the Act on Equal Participation of Women and Men in Management Positions in the Private and Public Sector is a consequential amendment to the shift of the previous Section 289a HGB into a new Section 289f HGB-E. To paragraph 2 To number 1 The amendment of Section 10 of the Transparency Directive Implementation Ordinance is a consequential change to the shift of the previous Section 315a HGB into a new Section 315e HGB-E. To number 2 The amendment of Section 12 of the Transparency Directive Implementation Ordinance is a follow-up to the changes in Section 315 Paragraph 1 HGB-E and the spin-off of Section 315 Paragraph 1 Sentence 4 HGB into a new Section 315 Paragraph 3 HGB-E. To number 3 The change in Sections 10 and 12 of the Transparency Directive Implementing Regulation requires a new transitional provision that is formulated as a mirror image of the transitional provision in the EC HGB. Re paragraph 3 To number 1 The change in Section 23 Paragraph 3 of the Asset Investment Act is the elimination of an editorial error in connection with the BilRUG. Machine Translated by Google - 77 - To number 2 The amendment to Section 23 of the Investments Act requires a new transitional provision that is formulated in a mirror-inverted manner to the transitional provision in the EGHGB. Re paragraph 4 To number 1 The changes in §§ 12 Paragraph 1 Sentence 1 and 15 Sentence 2 of the Act on German Real Estate Stock Corporations with Listed Shares (REIT-Gesetz) are each a consequential change to the shift of the previous § 315a HGB into a new one § 315e HGB-E. To number 2 The amendment to Sections 12 and 15 of the REIT Act requires a new transitional provision that is formulated as a mirror image of the transitional provision in the EGHGB. Re paragraph 5 To number 1 The changes in Section 3 Paragraph 2 Number 1 and Section 10a Paragraph 5 of the German Banking Act are also consequential changes to the shift from the previous Section 315a HGB to a new Section 315e HGB-E. To number 2 The change in §§ 3 and 10a of the German Banking Act requires a new transitional regulation that is formulated as a mirror image of the transitional regulation in the EGHGB. Re paragraph 6 To number 1 The change in § 47 Paragraph 2 Sentence 2 of the Audit Report Ordinance is also a consequential change to the shift of the previous § 315a HGB into a new § 315e HGB-E. To number 2 The amendment to Section 47 of the Audit Report Ordinance requires a new transitional provision that is formulated as a mirror image of the transitional provision in the EGHGB. Re paragraph 7 To number 1 The change in Appendix 3 of the Financial Conglomerate Solvency Ordinance requires a new transitional provision that is formulated as a mirror image of the transitional provision in the EGHGB. Machine Translated by Google - 78 - To number 2 The changes in Annex 3 item 004 of the Financial Conglomerate Solvency Ordinance are also consequential changes to the shift from the previous Section 315a HGB to a new Section 315e HGB-E. On Article 10 (entry into force) The law comes into effect immediately upon promulgation. Special transitional provisions are provided for the individual accounting regulations in the introductory laws or directly in the respective law.