von Göler (Hrsg.) / / § 87
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§ 87 Regulatory fines provisions

(1) Whoever, in their capacity as member of a supervisory board or member of an audit committee of a company which is capital market-oriented within the meaning of section 264d of the Commercial Code, a CRR credit institution within the meaning of section 1 (3d), first sentence, of the Banking Act, with the exception of the institutions referred to in section 2 (1), nos 1 and 2, of the Banking Act, or an insurance undertaking within the meaning of Article 2(1) of Directive 91/674/EEC of the Council of 19 December 1991 on the annual accounts and consolidated accounts of insurance undertakings (OJ L 374, 31.12.1991, p. 7), as last amended by Directive 2006/46/EC (OJ L 224, 16.8.2006, p. 1),

  • 1.  does not monitor the independence of the statutory auditor or of the audit firm in accordance with the provisions of Article 4(3) subparagraph (2), of Article 5(4) subparagraph (1), first sentence, or of Article 6(2) of Regulation EU No 537/2014 of the European Parliament and of the Council of 16 April 2014 on specific requirements regarding statutory audit of public-interest entities and repealing Commission Decision 2005/909/EU (OJ L 158, 27.5.2014, p. 77, L 170, 11.6.2014, p. 66) or
  • 2.  makes a recommendation regarding the appointment of a statutory auditor or of an audit firm which is not based on a request made by the supervisory authority pursuant to section 36 (1), second sentence, of the Insurance Supervision Act and which
  • a)  does not comply with the requirements under Article 16(2) subparagraphs (2) or (3) of Regulation (EU) No 537/2014 or
  • b)  was not preceded by a selection procedure in accordance with Article 16(3) subparagraph (1) of Regulation (EU) No 537/2014,

shall be deemed to have committed a regulatory offence.

(2) Whoever, in their capacity as member of a supervisory board which has not appointed an audit committee, submits a proposal to the shareholders of a company which is capital market-oriented within the meaning of section 264d of the Commercial Code or a CRR credit institution within the meaning of section 1 (3d), first sentence, of the Banking Act, with the exception of the institutions referred to in section 2 (1), nos 1 and 2, of the Banking Act, regarding the appointment of a statutory auditor or of an audit firm which does not comply with the requirements under Article 16(5) subparagraph (1) of Regulation (EU) No 537/2014, shall be deemed to have committed a regulatory offence.

(3) Whoever, in their capacity as member of a supervisory board which has appointed an audit committee, submits a proposal to the shareholders of one of the companies referred to in subsection (2) regarding the appointment of a statutory auditor or of an audit firm which does not comply with the requirements under Article 16(5) subparagraph (1) or subparagraph (2), first sentence, or second sentence, of Regulation (EU) No 537/2014, shall be deemed to have committed a regulatory offence.

(4) A fine of no more than fifty thousand euros may be imposed on a regulatory offence.

(5) The administrative authority within the meaning of section 36 (1), no. 1, of the Act on Regulatory Offences shall, in the case of CRR credit institutions within the meaning of section 1 (3d), first sentence, of the Banking Act, with the exception of the institutions referred to in section 2 (1), nos 1 and 2, of the Banking Act, and in the case of insurance undertakings within the meaning of Article 2(1) of Directive 91/674/EEC, be the Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht), in all other cases the Federal Office of Justice (Bundesamt für Justiz).


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