Exemption from the disclosure obligation

For the exemption of subsidiaries according to § 264 para. 3 HGB or § 264b HGB (annual financial statement) and/or of parent companies according to § 291 HGB or § 292 HGB (consolidated financial statement), the requirements detailed below must be met.

• Exemption from the obligation to disclose individual accounting documents
• Exemption from the obligation to disclose group accounting documents

Exemption from the obligation to disclose individual accounting documents

In order to effectively exempt a subsidiary from disclosing its own annual financial statements, the requirements of section 264 (3) HGB must be met in the case of corporations and the requirements of section 264b HGB must be met in the case of partnerships with limited liability. The exempting parent company must have its registered office in the EU or the EEA. Exemptions according to §§ 264 para. 3, 264b HGB may be prohibited by special legal regulations (e.g. prohibited according to EnWG, KAGB, TKG and VermAnlG).

Requirements for the exemption of subsidiaries (legal form: corporation) according to § 264 para. 3 HGB

The following requirements must be observed for the exemption of corporations (e.g. AG, GmbH and KGaA):

• Inclusion of the subsidiary to be exempted in the consolidated financial statements of a parent company with its registered office in the EU/EEA
• Consent of the shareholders of the subsidiary to be exempted to the exemption by resolution (exemption resolution)
• Obligation of the parent company to assume the obligations of the subsidiary (declaration of assumption)
• Preparation and audit of the consolidated financial statements and the group management report in accordance with the relevant EU Directives
• Disclosure of the exemption in the notes to the consolidated financial statement
• Disclosure of the exemption resolution, the declaration of compliance and the group accounting documents (consolidated financial statement, group management report, auditor's report)

Note

In addition to corporations, subsidiaries falling within the scope of the Disclosure Act (PublG) may also exempt themselves from their disclosure obligation if they are included as a subsidiary in a consolidated financial statement pursuant to Section 11 PublG or Section 290 HGB in accordance with Section 5 (6) PublG and meet the exemption requirements of Section 264 (3) HGB. For the exemption of a corporation by a PublG parent company, please also note § 264 para. 4 HGB.

Requirements for the exemption of subsidiaries (legal form: commercial partnership) pursuant to § 264b HGB

The following requirements must be observed for the exemption of limited liability partnerships (e.g. GmbH & Co. KG, SE & Co. OHG):

• Inclusion of the subsidiary to be exempted in the consolidated financial statement of a parent company with its registered office in the EU/EEA or of the personally liable shareholder
• Preparation and audit of the consolidated financial statement and the group management report in accordance with the relevant EU Directives
• Disclosure of the exemption in the notes to the consolidated financial statement
• Disclosure of group accounting documents (consolidated financial statement, group management report, auditor's report)

More detailed information on §§ 264 para. 3, 264b HGB

Transmission and disclosure

The group accounting documents of the parent company must be submitted to the Company register for disclosure as "consolidated financial statement". Please note that an effective exemption from individual accounting cannot be granted by a parent company resident in a third country.

Further documents and information on the effective exemption of a subsidiary (notice, exemption resolution, declaration of compliance, etc.) are to be transmitted to the Company register as "§§ 264 para. 3, 264b HGB". Please note that each exemption according to §§ 264 para. 3, 264b HGB has to be checked separately by the office keeping the register (cf. § 329 HGB).

If the parent company has already disclosed one or all of the documents required for the exemption, the subsidiary does not have to disclose the documents again if they can be found in the Company register under the subsidiary. For this reason, when transmitting exempting consolidated financial statements, a query is made by the Company register as to which subsidiaries are to be exempted from the obligation to disclose the annual financial statements with these documents. Only if the subsidiaries to be exempted are indicated completely and correctly can it be ensured that the documents can be found among all subsidiaries to be exempted and that it is thus recognisable that the exemption is complete. The query therefore ultimately serves to avoid unnecessary enquiries and notifications to the Federal Office of Justice. In your own interest, we therefore ask you to provide correct and complete information on all subsidiaries to be exempted.

Exceptions

The following subsidiaries cannot be exempted from their annual financial statement even if they meet all the requirements:

• Issuers of investments (according to VermAnlG)
• Energy companies (according to EnWG)
• Institutions according to KMAG
• Investment companies (according to KAGB)
• Capital management companies (in accordance with KAGB)
• Credit and financial services institutions (also: securities, payment and e-money institutions)
• Reinsurance companies
• Insurance companies and pension funds
• Large telecommunications companies (according to TKG)
• Cooperatives (eG and SCE)
• Capital market-oriented companies (capital market-oriented subsidiaries may no longer be exempted from their disclosure obligation for financial years beginning after 31 December 2020)

Excursus: Difference between subsidiary and branch office

According to § 290 HGB, subsidiaries are legally independent companies (separate legal entities) that are subject to the controlling influence of a parent company. In contrast to a subsidiary, a branch is not a separate legal entity from the company of the main branch (not a separate legal entity). The branch is part of the main branch under company law and discloses the accounting documents of its main branch according to § 325a HGB or § 340l HGB as "exempting annual financial statement".

Exemption resolution

The transmitted exemption resolution must state the business year concerned or it must at least be recognisable for which business year the exemption resolution has been passed. A mere reference to the inclusion of the subsidiary in the consolidated financial statements of the parent company on a certain date is not sufficient.

The exemption resolution must be disclosed as such. This does not necessarily have to be done with the wording of the resolution, but at least the fact must be disclosed that and for which precisely designated financial year the shareholders have agreed to make use of the exemption option pursuant to section 264 (3) HGB.

The transmitted resolution must refer to the disclosure in terms of content. A resolution on the exemption from the statutory audit of the annual financial statement is not sufficient. Likewise, it is not sufficient if it is merely communicated that an exemption resolution has been submitted to the Commercial register.

The resolution cannot be passed before the beginning of a business year (so-called "anticipatory resolution"). It can only refer to the "respective financial year", i.e. to the financial year whose annual financial statements have not yet been prepared (previous year) or whose annual financial statements will be prepared next (current financial year).

Declaration of acceptance

The obligation to make a contribution does not have to be made directly by the parent company at the highest level. It is sufficient if the top-level parent company, which prepares the consolidated financial statements, is indirectly obligated to the subsidiary to be exempted to compensate for annual deficits and liquidity bottlenecks via a closed chain of declarations of compliance.

Exemption from the obligation to disclose group accounting documents

In order to effectively exempt a parent company from disclosing its own consolidated financial statements, the requirements of section 291 HGB must be met in the case of groups with a superior group parent based in the EU or the EEA, and the requirements of section 292 HGB must be met if the group parent is based in a third country.

Requirements for the exempting effect of EU/EEA consolidated financial statements according to § 291 HGB

In order to effectively exempt a parent company that is at the same time a subsidiary of a parent company with its registered office in an EU/EEA state from the disclosure of its own consolidated financial statement pursuant to section 291 HGB, the following requirements must be met:

• Inclusion of the company to be exempted in the parent consolidated financial statement
• Preparation and audit of the consolidated financial statement and the group management report of the parent company in accordance with the relevant EU directives and international accounting standards
• Disclosures pursuant to section 291 (2) no. 4 HGB in the notes to the annual financial statement of the company to be exempted
• Disclosure of the information in the notes to the annual financial statement as well as disclosure of the group accounting documents (consolidated financial statement, group management report, auditor's report) in accordance with the regulations applicable to the financial statement to be exempted

Note

Parent companies falling within the scope of application of the Disclosure Act may also exempt themselves from their disclosure obligation if they meet the exemption requirements of section 291 HGB pursuant to section 11 (6) sentence 1 no. 1 PublG.

Transmission and disclosure

The EU/EEA group accounting documents of the group parent company must be transmitted to the company register for disclosure as "exempting consolidated financial statement". In constellations with a foreign group parent company, these documents must be transmitted to the Company register under the Commercial register data of the German parent company.

In addition, the company is in principle also obliged to disclose its own annual financial statements (the individual accounting documents) as "annual financial statement", which contain the information in the notes necessary for effective exemption. If the company exempted from disclosing its group accounting documents also wishes to be exempted from disclosing its individual accounting documents pursuant to section 264 (3) HGB or section 264b HGB, the information in the notes necessary for effective exemption (section 291 (2) no. 4 HGB) must be submitted separately to the Company register as a "note according to §§ 291, 292 HGB".

Exceptions

Capital market-oriented companies cannot be exempted from their consolidated financial statement even if they meet all the above requirements.

Requirements for the exempting effect of consolidated financial statements from third countries according to § 292 HGB

In order to effectively exempt a parent company that is at the same time a subsidiary of a parent company with its registered office in a third country from the disclosure of a consolidated financial statement pursuant to section 292 HGB, the following requirements must be met.

• Inclusion of the company to be exempted in the superordinate consolidated financial statement
• Preparation and audit of the consolidated financial statement and the group management report of the foreign parent company (the group parent) in accordance with the law of an EU/EEA state and in compliance with the relevant EU directives or international accounting standards
• Disclosures pursuant to section 292 para. 2 in conjunction with section 291 para. 2 no. 4 HGB in the appendix to the annual financial statement of the company to be exempted
• Disclosure of the information in the notes to the annual financial statement as well as in the group accounting documents (consolidated financial statement, group management report, auditor's report, if applicable, documents of the Chamber of Auditors) in accordance with the provisions applicable to the financial statement to be exempted

Note

Parent companies falling within the scope of application of the Disclosure Act may also exempt themselves from their disclosure obligation if they meet the exemption requirements of section 292 HGB pursuant to section 11 (6) sentence 1 no. 1 PublG.

Transmission and disclosure

The third-country consolidated accounting documents of the foreign parent company must be submitted to the company register for disclosure under the commercial register data of the German parent company as "exempting consolidated financial statement". Additional information on exempting consolidated financial statements may be submitted separately by companies to the company register as a "note according to §§ 291, 292 HGB".

Furthermore, the company is also obliged to disclose its own individual accounting documents as "annual financial statement", which contain the information necessary for effective exemption in the notes (cf. section 292 (2) in conjunction with section 291 (2) no. 4 HGB).

Exceptions

Capital market-oriented companies cannot be exempted from their consolidated financial statement even if they meet all the above requirements.