- BaFin – Translation - The present English text is furnished for information purposes only. The original German text is binding in all respects.

Section 1
Scope

This Regulation governs the allocation of the costs of the Federal Financial Supervisory Authority (Bundesanstalt für Finanzdienstleistungsaufsicht - BaFin), listed in section 17d (1) sentence 1 and (4) of the FinDAG, and of the Financial Reporting Enforcement Panel (Deutsche Prüfstelle für Rechnungslegung), recognized on the basis of section 342b (1) sentence 1 of the Commercial Code (Handelsgesetzbuch - HGB), to the entities liable for cost allocation named in section 17d (1) sentence 1 and 2 of the FinDAG, as well as the compensation of any differential between allocation prepayments and allocation amounts assessed in relation to the advance payments to be made by BaFin to the Financial Reporting Enforcement Panel (FREP) pursuant to section 342d sentence 3 of the HGB.

Section 2
Allocable costs

(1) The costs to be allocated pursuant to section 17d (1) sentence 1 and (4) of the FinDAG are the actual budget expenditures of BaFin and the FREP for one budget year. This includes appropriations to the pension reserve under section 19 (2) of the FinDAG, and to an investment reserve under section 12 (4) of the FinDAG, provided that they are attributable to the BaFin administrative area of financial reporting enforcement referred to in section 17a sentence 1 of the FinDAG. Sentence 2 applies accordingly to the FREP’s accounting items that are comparable to appropriations to a reserve within the meaning of the preceding sentence.

(2) Any deficits and outstanding amounts from the year prior to the budget year are to be added to the costs referred to in subsection (1). Surpluses from the year prior to the budget year are to be deducted from the costs.

Section 3
Allocation amount

The allocation amount is the share of allocable costs to be paid by entities liable for cost allocation.

Section 4
Allocation year

The allocation year is the budget year for which the costs pursuant to section 2 are to be allocated.

Section 5
Cut-off date for the cost allocation liability

The cut-off date for the cost allocation liability, within the meaning of section 17d (1) sentence 1 of the FinDAG, is 1 July of every budget year.

Section 6
Basis of assessment for the allocation amount

The total exchange turnover on domestic stock exchanges, in one allocation year, of securities of the entity liable for cost allocation, which are admitted for trading on the regulated market segment of a domestic stock exchange, are used to calculate the allocation amount pursuant to section 3. Subject to the provision of section 7, the allocation amount is calculated according to the relationship between the exchange turnover of the individual entity liable for cost allocation and the total exchange turnover of all entities liable for cost allocation.

Section 7
Minimum and maximum allocation amount

Without prejudice to section 6, the allocation amount must be at least EUR 250 and not in excess of EUR 40,000.

Section 8
Calculation and determination of the allocation amount

(1) After discharge has been granted pursuant to section 342d sentence 5 of the HGB and approval of the annual accounts by BaFin’s Administrative Council, BaFin calculates the allocation amount payable by each entity liable for cost allocation.

(2) Surpluses, deficits and outstanding amounts from the year prior to the allocation year, incurred by the date referred to in subsection (1), are to be taken into account in calculating the allocation amount. In the event that an amount taken into consideration as a deficit or outstanding amount in calculating the allocation amount is paid after the date referred to in subsection (1), it shall be included as a surplus in the determination of the allocation amount for the next allocation year following this payment. In the event that an allocation amount already paid by an entity liable for cost allocation is partially or fully refunded by BaFin, the refundable amount is to be taken into account as a deficit for the allocation year in which the refund is paid.

(3) BaFin provides a determination of the allocation amount in written or electronic form, as soon as it has been conclusively calculated pursuant to subsection (1). The allocation amount is to be rounded up or down to the nearest whole euro.

Section 9
Assessment of the allocation prepayment

(1) BaFin determines a prepayment amount in relation to the allocation amount for the next allocation year as soon as the budget plan for the current allocation year has been approved by the Federal Ministry of Finance. This determination is to be based on the projected costs for the allocation year according to this budget plan plus a surcharge for payment shortfalls. The surcharge is calculated according to the payment shortfall ratio, expressed as a percentage, used for calculation of the most recent allocation prepayment, but will amount to at least four percent. In the event that the budget plan is not approved pursuant to sentence 1 before 1 October of a calendar year, the prepayment amount is determined on the basis of the draft budget plan. Section 8 (3) sentence 1 half-sentence 1 applies accordingly.

(2) Entities that were liable for cost allocation in the preceding allocation year are liable for prepayments, unless the affected entity is able to prove, before 1 September of the year in which the prepayment amount is determined, that it will no longer be liable for cost allocation in the following year.

(3) The distribution of the projected costs within the meaning of subsection (1) sentence 2, which are to be allocated to the entities liable for prepayment, is to be calculated on the basis of the exchange turnover of the preceding allocation year, pursuant to sections 6 and 7.

(4) After it has been announced, the allocation prepayment determined in accordance with subsection (1) is payable on 15 December of each year. The amount referred to in sentence 1 must be paid to BaFin.

(5) If the allocation amount pursuant to section 6 is expected to exceed the prepayment amount, BaFin may determine a further allocation prepayment for the current allocation year. In the event that this determination is made before 15 August of a given year, entities that were liable for previous allocation prepayments in the current allocation year are also liable for this prepayment. The prepayment liability shall otherwise be determined pursuant to subsection (2). The costs to be allocated are to be distributed according to subsection (3). Section 7 applies to the total prepayment amounts of an entity liable for allocation prepayments pursuant to subsection (1). The prepayment amount determined in accordance with sentence 1 shall become due at a date to be set by BaFin.

Section 10
Compensation of differentials in relation to the FREP

(1) In the event that advance payments by BaFin, made pursuant to section 342d sentence 3 of the HGB, do not cover the costs incurred by the FREP in order to perform its duties pursuant to section 342b of the HGB, then BaFin must compensate for the resulting deficit from the allocation payment received. The costs described in sentence 1 are derived from the income and expenditure statement to be prepared by the FREP pursuant to the recognition agreement.

(2) The FREP must reimburse BaFin for any overpayment resulting from the advance payment made pursuant to section 342d sentence 3 of the HGB, as soon as discharge has been granted pursuant to section 342d sentence 5 of the HGB.

Section 11
Compensation of differentials in relation to the entities liable for cost allocation

(1) In the event that the prepayment made by an entity liable for cost allocation is lower than the allocation amount determined, then the entity is obliged to compensate BaFin for the resulting difference.

(2) In the event that the allocation prepayment made by an entity liable for cost allocation exceeds the allocation amount, the overpayment is to be refunded by BaFin. Sentence 1 applies accordingly for allocation prepayments made by entities liable for allocation prepayments that were not subject to cost allocation liability in the allocation year.

Section 12
Due date for allocation liabilities

Allocation liabilities become due as soon as their determination is announced to the entities liable for cost allocation, unless a later date is set by BaFin in individual cases; section 9 subsections (4) and (5) sentence 6 remains unaffected.

Section 13
Surcharges for late payment and collection

(1) BaFin levies surcharges for late payment on amounts not received by the due date; section 16 of the Act on Fees and Expenses for Federal Services (Bundesgebührengesetz – BGebG) applies accordingly.

(2) Amounts not paid on time are collected by BaFin pursuant to the provisions of the Act on Administrative Enforcement (Verwaltungsvollstreckungsgesetz – VwVG). The enforcement agency is the main customs office responsible for the registered office or branch of the judgment debtor.

Section 14
Transitional provisions

(1) Sections 5 and 9 apply to allocations for the year 2005 as follows:

1. Notwithstanding section 5, the cut-off date for the cost allocation liability within the meaning of section 17d (1) sentence 1 of the FinDAG is the day after this Regulation comes into force.
2. Allocation prepayments for the allocation year 2005 are determined on the basis of the separate section of the budget plan for 2005 to be shown pursuant to section 17a sentence 1 of the FinDAG, taking into account the costs described in section 17d (4) of the FinDAG. A surcharge of 20 percent for payment shortfalls is to be levied on the amount of total costs incurred within the meaning of sentence 1.
3. Entities liable for cost allocation are also liable for allocation prepayments.
4. Section 9 (3) applies for the distribution of projected costs within the meaning of no. 2, which are to be allocated to entities liable for prepayment on the basis of the exchange turnover from 2004.
5. The prepayment amount assessed in accordance with no. 2 shall become due at a date to be set by BaFin.

(2) Section 9 applies to allocations for the year 2006 as follows:

1. Entities liable for cost allocation in 2005 are liable for allocation prepayments.
2. Section 9 (3) applies for the distribution of projected costs within the meaning of section 9 (1) sentence 2, which are to be allocated to entities liable for prepayment on the basis of the exchange turnover from 2004.

(3) Section 1 in the version valid as of 26 November 2015 is to be applied to cost allocation for allocation year 2016 for the first time..

Section 15
Entry into Force

This Regulation shall enter into force on the day following its promulgation.