CODE OF COMMERCIAL LAW

Transcription

1 CODE OF COMMERCIAL LAW German Imperial Law Gazette (drgbl.) 219/1897, introduced by the 3. EVHGB drgbl I 1428 and the 4. EVHGB drgbl I 1999, most recent amendment by Federal Law Gazette I 1999/187 Obligation to keep books Section 189. (1) The merchant has to keep books and record in these books his business transactions and the situation of his property according to the principles of correct accounting. The books must be kept in such a way that a competent third party is able to get a picture of the business transactions and the situation of the enterprise within reasonable time. The business transactions must be recorded in a way that makes it possible to follow their origins and development. (2) The merchant has to keep copies of his business letters and store them as well as the business letters received. If data are transmitted by electronic means their readability has to be ensured appropriately. Keeping of books Section 190. (1) The merchant has to use a living language to keep his books and for other records required by law. If abbreviations, numbers, letters or symbols are used, their meaning has to be unequivocal. (2) The entries into the books and other records required by law must be complete, correct, up to date and orderly. (3) An entry must not be changed in a way that the original content can not be established any more. No changes must be done, that could lead to doubts, whether they have been entered originally or later on. Obligatory audit Section 268. (1) The annual financial statement and the situation report of companies have to be examined by an auditor. This does not apply to small private companies (section 221 para 1), unless they are required by law to establish a supervisory board. The annual financial statement can not be established if the required examination has not been done. Objective and extent of the audit Section 269. (1) The examination of the annual financial statement has to include the accounting. The examination of the annual financial statement and the combines annual financial statement has to include the compliance with obligations established by law and the supplementary provisions of the company statute. The situation report and the combines situation report have to be examined, whether they are in contradiction with the annual financial statement and whether they could create an incorrect impression of the situation of the enterprise or the combine. (2) The auditor for the combines annual financial statement has also to examine the annual financial statements condensed in the combines annual financial statement whether they comply with the principles of correct accounting and the provisions for including them in the combines annual financial statement. This does not apply to annual financial statements which have been examined according to this chapter. This has to be applied mutatis mutandis to annual financial statements of subsidiaries with their

2 main office abroad if their annual financial statement has been examined according to the principles of this chapter and the auditor has qualifications similar to those required by Austrian law. Appointment of the auditor Section 270. (1) The auditor is elected by the shareholders; the auditor for the combine is elected by the shareholders of the mother company. If a supervisory board exists, it has to propose the auditor. [...] Selection of the auditor Section 271. (1) The auditor for the annual financial statement of a public company or a combines annual financial statement must be a vowed auditor [ Wirtschaftsprüfer und Steuerberater ] or a society of auditors; for limited companies and combines that do not comprise public companies the may also be a auditor [ Buchprüfer und Steuerberater ] or such a society. (2) A person must not be appointed as an auditor, if 1. he holds shares of the company to be audited of the value of at least 5 % of the founding capital or EURO 70,000; 2. he is or was within the last three years a member of an organ of the company; 3. he is a member or shareholder of a company holding at least 20 % of the shares or otherwise connected [of/with the company examined]; 4. he is an employee of a company holding at least 20 % of the shares or otherwise connected or of a person holding at least 20 % of the shares [of/with/of the company examined]; 5. he was engaged in the accounting or establishment of the annual financial statement of the company examined beyond the acts related to the audit; 6. he is a member of an organ of a company that must not be appointed as an auditor according to subpara 5; 7. he employs a person that must not be appointed as an auditor according to subparas 1 to 5; 8. he gained at least 30 % of his yearly income within the last 5 years from auditing and consulting the company audited and from auditing and consulting companies in which the company audited holds at least 20 % of the shares and this is expected also for this year. Obligation to provide information Section 272. (1) The legal representatives of the company have to present the annual financial statement and the situation report immediately after their establishment to the auditor. They have to provide the auditor with the possibility to examine the books and records of the company and its property and debts. (2) The auditor may ask the legal representatives of the company for all information and records he considers necessary for a thorough examination. He has these rights and those according to para 1 already before the establishment of the annual financial statement. He has the same rights in respect to parent companies and subsidiaries insofar he considers it necessary for a thorough examination. Report on the audit

3 Section 273. (1) The auditor has to report the results of the audit in writing. In the report it has to be emphasized in particular, whether the accounting, the annual financial statement, the situation report, the combines annual financial statement and the combines situation report are in compliance with legal requirements and whether the legal representatives provided all the information and records asked for. The elements of the annual financial statement have to be split up and explained.[...] (2) The auditor has to report immediately if he establishes within his competence facts that endanger the existence of the enterprise examined or influence its development significantly or that show serious violations of legal obligations by the representatives. [...] Attestation note Section 274. (1) If according to the final result of the audit no objections are to be made, the auditor has to attest this with the following note to the annual financial statement and the combines annual financial statement: "The accounting and the annual financial statement are / The combines annual financial statement is according to my/our due examination in compliance with legal requirements. The annual financial statement/ The combines annual financial statement gives a true picture of the situation of property, finances and profit of the society/the combine in compliance with the principles of correct accounting. The situation report/ The combines situation report is in conformity with the annual financial statement/ the combines annual financial statement." (2) The attestation note is to be supplemented in the appropriate manner if additional remarks seem necessary to avoid a wrong impression of the content of the audit and the scope of the attestation remark. [...] (3) The attestation remark has to be limited or refused by the auditor if he has to raise objections. The refusal has to be explained in a remark to the annual financial statement or the combines annual financial statement. Reasons for the limitation or refusal have to be given. [...] Disclosure Section 277. (1) The legal representatives of companies have to hand over the annual financial statement and the situation report after it was dealt with by the general meeting, in any case at the latest within nine months after the last day included in the annual financial statement, together with the attestation remark or the remark concerning its refusal or limitation to the register court competent for the place of the main office of the company. [...] (2) The management board of a large company limited by shares (section 221 para 3) has to take steps for the publication of the annual financial statement together with the attestation remark or the remark concerning its refusal or limitation in the "Amtsblatt zur Wiener Zeitung" immediately after it was dealt with by the general meeting. [...] Disclosure for small limited companies

4 Section 278. (1) Small private companies (section 221 para 1) are subject to section 277 with the modification, that only the annual financial statement and its annex must be submitted by its representatives. [...] Formalities and content of the documents for disclosure and publication Section 281. (1) For the purpose of complete or partial disclosure of the annual financial statement or the combines annual financial statement and for the purpose of publication on the basis of the companies contract the annual financial statement or the combines annual financial statement must be reproduced in a way that complies with the provisions on their establishment; in this context they must be complete and correct. The day of their establishment must be pointed out. The attestation remark or the remark concerning its refusal must be included completely if the annual financial statement or the combines annual financial statement has been examined by an auditor due to legal provisions; it must be pointed out if the annual financial statement is disclosed only partially and whether the attestation remark refers to the complete annual financial statement. Examination by the register court Section 282. (1) The court has to examine whether the documents subject to disclosure according to sections 277 to 281 have been handed over completely to the court and whether they have been published if necessary. Penalties Section 283. (1) The court has to make members of the management board (directors) or liquidators, without prejudice to the general provisions of commercial law, comply with sections 244, 245, 247, 248, 270, 272 and 277 to 280, members of the supervisory board to comply with section 270 and in the case of an Austrian subsidiary of a foreign corporation its representatives in Austria to comply with section 280a with fines up to ATS (2) If the members of the management board (directors), the liquidators, the members of the supervisory board and the representatives of foreign companies in Austria do not comply with their obligation according to para 1 within two months after the fine was pronounced, an additional fine of up to ATS has to be pronounced and the relevant court decision has to be published at the cost of the society. Fines may be pronounced repeatedly. Federal Law of March 31, 1965 on public companies Federal Law Gazette (BGBl.) 1965/98, most recent amendment by Federal Law Gazette I 1999/187 Penal Provision

5 255. Members of the managing board, members of the supervisory board and liquidators are to be punished with deprivation of liberty for up to two years or with a fine of up to 360 daily fines 1. if they present the situation of the company incorrectly or omit relevant facts in reports, in inventaries of the property of the company, especially in annual financial statements, in public calls for acquiring shares of the company or in announcements made at general meetings, 2. if they omit relevant facts, present the situation of the company incorrectly or in any other way include incorrect statements in the information to be given to auditors according to section 272 Code of Commercial Law or to any other controllers of the company or 3. if they make incorrect statements or omit relevant facts in the information to be included in the annex (sections 236 to 240 Code of Commercial Law) or in the situation report (section 243 Code of Commercial Law). Law of March 6, 1906 on private companies Imperial Law Gazette (RGBl.) 1906/58, most recent amendment by Federal Law Gazette I 1998/125 Penal Provision 122. Managing directors, members of the supervisory board, agents and liquidators are to be punished with deprivation of liberty for up to two years or with a fine of up to 360 daily fines 1. if they present the situation of the company incorrectly or omit relevant facts in reports, in inventaries of the property of the company, especially in annual financial statements, in public calls for acquiring shares of the company or in announcements made at general meetings, 2. if they omit relevant facts, present the situation of the company incorrectly or in any other way include incorrect statements in the information to be given to auditors according to section 272 Code of Commercial Law or to any other controllers of the company or 3. if they make incorrect statements or omit relevant facts in the information to be included in the annex (sections 236 to 240 Code of Commercial Law) or in the situation report (section 243 Code of Commercial Law).