Special audit (company law)

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A special audit is an extraordinary audit provided for by the German Stock Corporation Act (AktG) . These include

The audits serve to provide an extraordinary clarification of certain facts, in particular the behavior of founders and managers (management board, supervisory board). Only the shareholders can initiate a special audit. Third parties do not have a corresponding right. The appointed special auditors have information rights as defined by law. You are obliged to report in writing on the results of your examination.

General special audit (Sections 142–146 AktG)

The general meeting can resolve the appointment of special auditors with a simple majority of votes. The special auditor is only allowed to examine

be ordered. The examiner may not investigate other processes. If the general meeting rejects an application for the appointment of special auditors, the competent court must appoint special auditors at the request of minority shareholders (shareholders whose shares together reach 100,000 euros or a proportionate amount of 100,000 euros at the time of application), if there are facts exist that justify the suspicion that dishonesty or gross violations of the law or the articles of association occurred during the process. The special auditor is only allowed to examine

be ordered.

Special audit under accounting law (Sections 258–261a AktG)

The special audit under accounting law is a special audit that deals with individual questions in the annual financial statements. The regulations of §§ 142–146 AktG apply accordingly, unless §§ 258–261a AktG stipulate otherwise. Special auditors under accounting law are to be appointed by the competent court at the request of minority shareholders (shareholders whose shares together reach the 100th part of the share capital or a proportionate amount of 100,000 euros at the time of application) if there is reason to assume that

  • certain items in the established annual financial statements are not insignificantly undervalued ( Section 256 (5) sentence 3 AktG) or
  • the appendix does not contain the prescribed information or does not contain it in full and the management board did not provide the missing information at the general meeting, although it was asked for, and the question was requested to be included in the minutes.

The application to the court must be submitted within one month of the annual general meeting on the annual financial statements.

Special audit under group law (Section 315 AktG)

The special audit under group law is a special audit that deals with individual questions of group law. The provisions of Sections 142–146 AktG apply accordingly, unless Section 315 AktG provides otherwise. Special auditors under group law are to be appointed by the competent court at the request of a shareholder if

  • the auditor restricted or failed to issue the auditor's report on the report on relationships with affiliated companies,
  • the supervisory board has declared that objections are to be raised against the declaration of the management board at the end of the report on relationships with affiliated companies,
  • the management board itself has declared that the company has been disadvantaged by certain legal transactions or measures without the disadvantages having been compensated.

The subject of the audit can only be business relationships between the company and the controlling company (cf. Section 17 AktG) or a company affiliated with it (cf. Section 15 AktG). Special auditors under group law are to be appointed by the competent court at the request of minority shareholders (shareholders whose shares together reach the 100th part of the share capital or a pro-rata amount of 100,000 euros at the time of application) if there are facts that suspect an unlawful disadvantage justify.

Special test in the GmbH

A special test is also possible in the GmbH. The legal basis is Section 46 No. 6 GmbHG. The decision is made by the shareholders' meeting with a simple majority.

literature

  • Ronny Jänig: The special audit under stock corporation law - a comparative study of the extraordinary control of the administration in German, Swiss, French, English and Dutch stock corporation law. 1st edition: Nomos Verlag, Baden-Baden 2005; 2nd unchanged edition, BoD Verlag, Norderstedt 2008.
  • Hans-Ulrich Wilsing, Klaus von der Linden, Markus Ogorek, Judicial content control of special audit reports. In: New Journal for Corporate Law (NZG), 2010, pp. 729–734.

See also

Individual evidence

  1. ↑ Leinekugel, requirements and limits of a GmbH-legal special audit according to § 46 No. 6 GmbHG in conflicts among shareholders , GmbHR 2008, 632