Disclosure obligations

The obligation to disclose the annual financial statements serves to compensate for the limited liability in certain legal forms (e.g. GmbH, UG (limited liability), GmbH & Co. KG) to protect creditors and to ensure the functionality of the market. In Germany, the company data that is subject to the obligation to publish can be accessed by anyone centrally on the internet platform www.unternehmensregister.de.

The disclosure obligation can be based on various reasons:

First and foremost, corporations and all partnerships in which no natural person has unlimited liability (capitalist partnerships such as GmbH & Co. KG) are subject to the disclosure provisions of the German Commercial Code.

Other companies, such as partnerships and sole traders may, once they exceed a certain size, be required to disclose information under the Disclosure Act. Credit institutions and insurance companies are subject to disclosure requirements based on their activities.

Corporations and capitalist partnerships
The disclosure obligation of corporations is governed by sections 325 et seq. of the German Commercial Code (HGB).The disclosure obligation applies to all corporations, such as

Furthermore, general partnerships (OHG) and limited partnerships (KG) in which no natural person is liable are obliged to disclose, see section 264a HGB, such as

The extent of the disclosure requirements for the aforementioned companies differs depending on whether they are large, medium-sized, small or very small companies. Large companies have very far-reaching disclosure requirements, while disclosure is simplified for very small, small and medium-sized companies (see sections 326, 327 HGB). Further information can be found in the leaflet entitled “Accounting obligations for merchants”.

Disclosure requirements under the Public Disclosure Act
Under the Public Disclosure Act, companies that are not corporations are also required to disclose information once they reach a certain size, e.g. partnerships (OHG, KG, GbR) and sole traders.

These companies are required to disclose information if at least two of the following three characteristics apply for the past financial year and for the two subsequent financial years. Note that decisive in each case is the last day of the respective financial year (balance sheet date):

Disclosure obligations of credit institutions and insurance companies
Credit and financial services institutions and insurance companies are generally obliged to disclose information irrespective of their size.

Form and costs of submission

Accounting documents with a financial year beginning before January 1, 2022 must be submitted to the Federal Gazette (“Bundesanzeiger”), while accounting documents from the 2022 financial year must be sent directly to the company register (“Unternehmensregister”). The Bundesanzeiger Verlagsgesellschaft mbH in Cologne is the operator of the “Bundesanzeiger” and the “Unternehmensregister”.

As an alternative to publishing the balance sheet in the Federal Gazette, micro-corporations can choose to file their balance sheet with the Company Register. In practice, filing is effected by submitting the balance sheet in electronic form to the Federal Gazette and requesting at the same time that it be forwarded to the Company Register for permanent filing. Registration and login on the platform of the Federal Gazette is necessary for this.

The filing option can only be used for annual financial statements with a balance sheet date of 31 December 2012 or later. Publication is still required for annual financial statements with earlier closing dates. Filed balance sheets continue to be open to inspection by anyone, however, third parties need to apply and pay a fee. Consequently, filing does not completely prevent the publication of company data. However, interested balance-sheet readers have to overcome additional hurdles before they can access the desired balance sheets.

Practical requirements, however, stand in the way of easier publication for micro-corporations. For example, tax accounting and the preparation of the e-balance sheet require a certain level of detail. In addition, banks will continue to request meaningful financial statement information, so that micro-corporations may not be able to implement all the planned publication simplifications in practice.

Regardless of their size, the following types of companies cannot use the filing option and must publish their annual financial statements:

“Cooperative” companies may also not file their balance sheet. For German branches of overseas companies (pursuant to section 325a or section 340 HGB), the legal provisions with the corresponding threshold values in the EU country of the head office apply. Disclosure requirements in the partnership agreement must also be taken into account.

Users can use the Bilanznavigator (balance sheet navigator) of the Federal Gazette to find out the form in which their annual financial statements need to be published.

Note: Submitting documents in Word, Excel or PDF format (submission by email is not permitted) can be very expensive. We therefore recommend that you submit the documents in XML or XBRL format – these formats are also used by many tax consultants – or enter them directly on the service platform. Templates and fee information can also be found on the service platform. Currently, the fees for these formats are EUR 30 for small businesses and EUR 48 for medium-sized businesses.

Note: If you as a company have a tax advisor, note that they usually require a separate order for disclosure, since disclosure is normally not part of their tax consulting mandate.

Deadline
The documents to be disclosed (annual financial statements, management report, and auditor's report if applicable) must be published immediately upon presentation to the shareholders, but no later than twelve months after the end of the relevant financial year (section 325 par. 1 no. 1 HGB). In the case of listed corporations, the deadline is a maximum of four months.

Electronic identity verification
From August 1st, 2022, a new obligation to carry out a one-time electronic identity check will apply to all senders of invoice documents and company reports. The new identification obligation affects every natural person who wants to transmit data to the company register for a company that is subject to a disclosure obligation. This means that from August 1st, 2022, it will no longer be possible to publish annual financial statements without prior identification of the person actually transmitting the data. Bundesanzeiger Verlag GmbH will provide three identification procedures on its publication platform (www.publikations-plattform.de) for identification as the person authorized to transmit data: VideoIdent, AutoIdent and electronic proof of identity (eID). In order to avoid inconvenience and time pressure, it is advisable to identify all persons responsible for the transmission of accounting documents and company reports as early as possible. Bundesanzeiger Verlag GmbH offers free webinars at www.bundesanzeiger-verlag.de/veranstaltungen to familiarize yourself with the new identification procedures.

Failure to comply with disclosure requirements could result in the initiation of fine proceedings. The operator of the Federal Gazette checks whether the documents to be submitted have been submitted on time and in full. If this is not the case, the operator of the Federal Gazette informs the Federal Office of Justice. The latter officially initiates administrative fine proceedings with the request to comply with the legal filing and publication obligations within a grace period of six weeks. Failure to do so may result in a fine of at least EUR 2,500 and can amount to up to EUR 25,000. Appealing against the threat of a fine has no suspensory effect.

The fine will only be imposed if the documents are not submitted within the grace period. If the six-week period is only slightly exceeded (case law assumes a maximum of 14 days), the fine can be reduced to 10% of the threatened fine. In such a case, therefore, you should appeal against an administrative fine that is higher than this and demand a reduction. For this you need to appeal against the fine within the deadline. If the appeal is rejected, an immediate appeal against this rejection may be lodged with the Bonn Regional Court.

In addition, the company will be granted a restitutio in integrum if, after being threatened with the fine, it was prevented through no fault of its own from appealing within the six-week grace period or making the necessary disclosure. The company must apply to the Federal Office of Justice for the restitutio within two weeks of the removal of the obstacle and make up for the omission (disclosure or objection) within six weeks.

If disclosure is only slightly delayed, the fine for micro-enterprises and small companies that submitted their balance sheets late may be reduced from EUR 2,500 to EUR 500 (in the event of late filing) or to EUR 1,000 (in the event of late publication). However, this only applies if the annual financial statements are published before the Federal Office of Justice has decided on the fine.

If the company does not comply with the disclosure request, the threatened fine will be imposed. If disclosure is still not made, the sanctions will be repeated until the company has fulfilled its disclosure obligation. The threatened and imposed amount will be gradually increased up to EUR 25,000.

With the threat, the parties involved are additionally charged the costs of the administrative fine proceedings, currently amounting to EUR 103.50 (administrative fee and expenses). Even if the documents are subsequently submitted within the additional period, these administrative costs shall not be subsequently waived. The administrative fine procedure can be repeated as often as necessary until disclosure has actually taken place. This means that the procedural fee can also be imposed several times. Furthermore, civil and criminal liability consequences may also be considered in the event of a breach of disclosure obligations.

Note: In practice, the Federal Office of Justice may inadvertently also initiate administrative fine proceedings for companies that are not obliged to disclose (e.g. limited partnerships (KG) with a natural person as the person with unlimited liability) or that are only obliged to disclose at another point in time (e.g. different financial year). In these cases, too, an appeal must be lodged so that no fine or legal costs are incurred.

Further information on the submission of the documents can be found on the website of the Federal Gazette at www.bundesanzeiger.de. The Federal Gazette can also be reached by calling the service number 0800 – 123 43 39 Monday to Friday 8 a.m. to 6.30 p.m. (free of charge from the German fixed network). From abroad: +49 – 221 / 9 76 68-0 (subject to charge).

IHK Berlin publishes professional articles as a service for its member companies. These are intended to provide a brief introduction to the legal principles involved, and do not claim to be exhaustive. They are no substitute for the extensive advice available from a lawyer/tax advisor who has carried out a detailed assessment of your individual circumstances.