Disclosure obligation

The disclosure obligation is the legal obligation of certain companies , in particular to publish accounting-related information.

Their voluntary origin dates back to the 13th century, when freely accessible land registers were introduced in European cities and merchants in Northern Italy also introduced company books and power of attorney registers .

Germany

In Germany, on January 1, 2007, the obligation to publish the annual financial statements was extended to a third of the companies registered.

It is to be published in the Federal Gazette no later than twelve months after the end of the financial year, together with the auditor’s report , if applicable . This obligation applies to:

all corporations ( § 325 HGB )
Commercial partnerships without a natural person as general partners such. B. the GmbH & Co. KG ( § 264a HGB, since 2000)
other companies that exceed a certain size ( § 1 Publicity Act )

If a company has a direct or indirect controlling influence over another company, this company (parent company) must also publish consolidated financial statements (i.e. a consolidated annual financial statement) ( Section 11 of the Publicity Act).

The purpose of the regulation is to enable the company's stakeholders , such as business partners, employees and shareholders, to find out about its economic situation. The disclosure requirement corresponds to the limitation of liability of the corporation.

Current version of the law

The law on electronic commercial registers and cooperative registers as well as the business register determines u. a. that the documents for fiscal years from 2006 onwards must be submitted to the electronic Federal Gazette. The submitted documents are available through the website of the business register publicly available. Compliance with the disclosure requirement is monitored by the judicial administration through the use of software in order to achieve complete disclosure of the annual financial statements that are subject to disclosure.

Up until 2007, many companies did not fulfill their disclosure requirement because they wanted to keep their annual financial statements secret from the competition or simply shied away from the effort and costs associated with publication and so far only seldom did so upon request was pursued. Empirical studies show that secrecy from competitors in particular was the strongest driving force for companies to breach the disclosure obligation. Before the legal reform, companies with financial restrictions due to a high level of debt avoided disclosing their annual financial statements in order to counter the risk of competitive price undercutting by competitors. Due to the new regulation, the German Federal Office of Justice has been initiating administrative fine proceedings against almost all companies that do not disclose their annual accounts since January 2008. Connect to it from the Federal Office fees imposed from 50 euros and administrative fines threatened from 2500 euros.

Relief for the smallest, small and medium-sized companies

The scope of the accounting and disclosure obligations differs depending on the size of the corporation. A distinction must be made between the reliefs that already apply to the preparation of the annual financial statements (§§264 ff. HGB) and those that only apply to disclosure (§§ 325 ff. HGB).

Large and medium-sized corporations have their financial statements by an auditor can consider . If and to the extent that the audited financial statements deviate from the disclosed ones, this must be indicated when using the auditor's report. The following facilities apply to medium-sized and small corporations:

The profit and loss account does not have to break down the gross profit § § 276 f. HGB .
In the appendix , the business activities do not have to be broken down according to sales markets.
The annual financial statements can be further shortened for disclosure purposes (cf. § 327 HGB).

For small corporations, there are simplifications:

Some of the items on the balance sheet can be summarized in Section 266 f. HGB .

The company does not have to disclose its profit and loss account and does not have to provide any information in the notes to § § 326 et seq. HGB .

The appendix can be shortened considerably § § 288 f. HGB .

The company does not have to prepare a management report § § 264 f. HGB .

In accordance with Section 326 (2) of the German Commercial Code (HGB), further simplifications for annual financial statements as of December 31, 2012 or later (Article 70 of the German Commercial Code) apply to micro-corporations:

The company no longer has to disclose its annual financial statements as before, but only has to file them. This means that third parties can only research the financial statements for a fee.
The balance sheet can be further simplified.
An appendix is not necessary if certain information is shown under the balance sheet.

Publication or deposit costs

Submissions to the Federal Gazette are usually billed according to the number of characters contained in the submitted documents. For the companies and corporations concerned, this would have meant a very significant increase in costs for fulfilling the legal obligation to submit annual financial statements. In order to prevent this and, in particular, not to overburden smaller companies, the Bundesanzeiger publisher was obliged to offer inexpensive alternatives to submission.

Sanctions

The Federal Office of Justice carries out administrative fine proceedings in accordance with Section 335 of the German Commercial Code (HGB) against companies that do not comply with the obligation to publish or file the annual financial statements within the statutory deadlines. First, the legal representatives of the company are requested by means of a threatening order to make up for the publication within six weeks. The threatening order is associated with costs of currently EUR 103.50, which are due in any case. If the disclosure does not take place and the company does not assert any grounds for excuse, a fine will be set, the amount of which depends on the type of publication and the size of the company and is at least EUR 500.

The Federal Gazette now offers the option of submitting documents in XML format at flat rates. Most providers of accounting software have responded by adding the option to output the annual financial statements in XML format. After registration, the publisher also offers the option of entering the data directly in an online form.

For the publication of the annual financial statements of a small company (up to 4 million euros balance sheet total) via XML file or online, a flat rate of 30 euros plus 3 euros for the corresponding entry in the company register will be charged per year from the 2009 financial year. For a corresponding deposit (only possible for the smallest companies) a flat rate of 23 euros is charged.

According to experts, a change to a foreign legal form, e.g. a British limited company, does not mean any advantages for companies, since these are just as strictly public in Great Britain and the financial statements there must also be published in the Federal Gazette.

Further disclosure requirements

Listed corporations, such as stock corporations , are subject to a stricter disclosure requirement ( Section 325 (4) HGB) with a period of only four months for disclosure. If the company fails to provide mandatory reporting, trading in the company's shares may be suspended. In addition, the publicity requirements under capital market law are z. B. to be observed in the case of proprietary transactions by executives and ad hoc publicity .

The Publicity Act regulates the disclosure obligation of companies that are not obliged to disclose their annual financial statements as corporations. This includes in particular commercial partnerships and sole proprietorships . These are only obliged to disclose if their business operations exceed a considerable scope (total assets: EUR 65 million, sales: EUR 130 million, 5000 employees).

A notification of voting rights is also mandatory if certain reporting limits are exceeded or not reached .

Obligations from agreements under private law

The statutory disclosure requirements are to be distinguished from private law regulations, such as those made by various stock exchange operators with issuers of listed securities. For example, participants in the Prime Standard segment on the Frankfurt Stock Exchange undertake to publish quarterly reports. The Porsche -M refused to comply with this duty and was excluded from the Prime Standard.

In the German open market there are various "premium segments" with increased disclosure requirements: Scale in Frankfurt, m: access in Munich, the Mittelstandsbörse in Hamburg and Hanover, Freiverkehr Plus in Stuttgart and the primary market in Düsseldorf. A comparable segment on the London Stock Exchange is the Alternative Investment Market .

Austria

Corporations with an annual turnover of 70,000 euros or more have had to enter their annual financial statements in the commercial register since December 31, 2007 .

Individual evidence

^ Hanno Merkt : Corporate Publicity . Disclosure of company data as a correlate of market participation (= Jus privatum . Band 51 ). Mohr Siebeck, Tübingen 2001, ISBN 3-16-147437-6 , p. 31-32 ( /books.google.de ).

↑ Many companies ignore the disclosure requirement . March 25, 2008. Retrieved September 15, 2014.

↑ See business register

↑ Darren Bernard: Is the risk of product market predation a cost of disclosure? In: Journal of Accounting and Economics (= Conference papers 2015 ). tape 62 , no. 2 , November 1, 2016, ISSN 0165-4101 , p. 305-325 , doi : 10.1016 / j.jacceco.2016.07.001 ( sciencedirect.com [accessed December 8, 2019]).

↑ Questions and answers on the fine procedure . Federal Office of Justice (Germany) . Archived from the original on November 29, 2014. Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Retrieved on November 19, 2014: “9. What are the consequences of a breach of the disclosure requirement? […] This is done under threat of a fine, which amounts to at least 2,500 euros and can amount to up to 25,000 euros. [...] "

↑ Information for entrepreneurs on submitting annual financial statements to the commercial register ... (PDF; 48 kB) Federal Ministry of Justice . Retrieved September 15, 2014.

[1] Hanno Merkt : Corporate Publicity . Disclosure of company data as a correlate of market participation (= Jus privatum . Band 51 ). Mohr Siebeck, Tübingen 2001, ISBN 3-16-147437-6 , p. 31-32 ( /books.google.de ).

[2] Many companies ignore the disclosure requirement . March 25, 2008. Retrieved September 15, 2014.

[3] See business register

[4] Darren Bernard: Is the risk of product market predation a cost of disclosure? In: Journal of Accounting and Economics (= Conference papers 2015 ). tape 62 , no. 2 , November 1, 2016, ISSN 0165-4101 , p. 305-325 , doi : 10.1016 / j.jacceco.2016.07.001 ( sciencedirect.com [accessed December 8, 2019]).

[5] Questions and answers on the fine procedure . Federal Office of Justice (Germany) . Archived from the original on November 29, 2014. Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. Retrieved on November 19, 2014: “9. What are the consequences of a breach of the disclosure requirement? […] This is done under threat of a fine, which amounts to at least 2,500 euros and can amount to up to 25,000 euros. [...] " @1@ 2

[6] Information for entrepreneurs on submitting annual financial statements to the commercial register ... (PDF; 48 kB) Federal Ministry of Justice . Retrieved September 15, 2014.