The new penalty punishment procedures of § 283 UGB and its transitional provision in § 906 Abs 23 UGB - an interpretation The revision of § 283 UGB by the BBG (Federal Law Gazette I No. 111/2010) leads to a significant tightening of disclosure requirements for submission subject to corporations and their institutions. The corresponding changes were already present in many places, so I am here to the transitional provision concentrate, which obviously creates a lot of confusion and - in my view - has led to numerous misrepresentations.
find any case, the web and in newsletters regarding the treatment of recent delays have statements such as these:
It came with 1 January 2011. It is in principle applied also to have occurred in the past and ongoing violations of the disclosure requirement. So far failed disclosures may to 28 February 2011 be rescheduled without penalty.
This statement suggests that all renovated in the past delays have lying in the disclosure quasi, are the relevant institutions with a "reprieve" until 28/02/2011 acknowledged and sanctioned from 1.3.2011 all outstanding violations under the new rules.
that not the case may be, gives a glimpse into the relevant transitional provision of § 906, para 23 UGB. The quite misleading formulated standard is as follows:
§ 283 as amended by the Finance Act of 2011, Federal Law Gazette I No. 111/2010 shall enter into force as of 1 January 2011. § 283 is amended by the above-mentioned Federal Act apply to violations listed in § 283 para 1 duties after 1 January 2011 continue to be set or. Has the disclosure period before 1 Ended in March 2011 and the disclosure is not until 28 February 2011 is, so is a criminal penalty provided by § 283, paragraph 2 shall be amended by the Finance Act of 2011 against the disclosure subject to authority and the society. Only at The failure of disclosure for each additional two months after 28 February 2011, the provisions of § 283 para 4 and 5, respectively, in the version of that federal law applies. In respect of delays have for each institution before 1 January 2011 is applied § 283 in the current version until then.
I dedicate myself to answer the question of how the "old cases" based on this transition to standard be assessed.
is clear, first, that § 283 UGB is entered in the new version to 1.1.2011 in force and therefore the entire transitional provision of § 906 Abs has gained only 23 per 01.01.2011 advantage. Note that I therefore consider it essential, as is made clear by the fact that for violations of disclosure obligations before 1.1.2011, the new rules of § 283 UGB and its transitional provision is not to be used.
for all dates that are before the (inclusive) 31.3.2010, the Einreichverpflichtung so under § 283 UGB enforce old.
The financial statements that is more than nine months after the balance sheet date when Company registration would submit, as in the specific example must be submitted on 31.12.2010, the breach of that obligation was the first time ever one on 01.01.2011, the new arrangements should apply only to offenses that are set to 1.1.2011, which is why the injury Einreichverpflichtung this is yet to be assessed under the old law. Already pending coercive penalty proceedings against institutions affected companies are therefore continue on the basis of old rules and then possibly ongoing deadlines so far for these companies or their bodies no "grace period" until 02.28.2011 there. This is naturally also apply to all pending cases not filed with respect to Financial statements in even more distant past.
The transitional provision simply means that in the event that the disclosure period for the period between the enactment of new regulations and 28.2.2011, ending a criminal penalty, available on a new § 283 paragraph 2 UGB may be imposed only after 01/03/2011. As a result, this means that the rumored grace period applies only to words virtually annual accounts for 30.4. 31/05/2010 or set up and therefore at 31.1. or would be filed 28/02/2011. This interpretation also finds its support in the remarks that run, that pursuant to the transitional arrangements, a penalty in respect of a criminal Säumnisperiode between 1 January 2011 and including 28 Earlier than 1 February 2011 March 2011 (taking into account a to be adopted for the post delivery period of two weeks until the second half of March 2011) and can only be initiated by force penal. The notes hold further that, for lying before the implementation date Säumnisperioden still only the old law can remain relevant and to decide on compulsory punishment for this misconduct by due process of the old law, is appropriate for such prior period is already a compulsory penalty proceedings are pending.
It then follows the following observation: For the
the entry into force, however, is each subsequent Säumnisperioden with forced under the new penal law in the two-month intervals to proceed.
This formulation led to misunderstandings, if you let the meaning of "Säumnisperiode" in the dark. I believe that it act this only to the specific terms of financial statements (first) failure to act has occurred, then the same - continues to meet the disclosure obligation - as Säumnisperiode.
Example: A
as at 31/1/2010 to be compiled financial statements would be submitted no later than 10/31/2010, the first time it has been breached so put on 11/01/2010, this Säumnisperiode lasts so since that time, so to respond to this behavior by due process of the old law must be why a criminal penalty notice may be re-imposed even in the future at any time pursuant to § 283 paragraph 2 UGB. It is conceivable after the effective date of the BBG did not Säumnisperiode "connect", since a failure to act once it has occurred continues as a kind of "continuous offense" and not start to run again and again.
against this background is only the last sentence of the transitional provision meaning that in respect of delays have the respective institutions before 1.1.2011 § 283 as in force until then Version thereof.
to further confusion, the second sentence of § 906, para 23 lead, the "continue" of talks. Also this "persistence" can refer to my understanding, only in the scope of § 283 of the newly set violations, and not have to be met on an ongoing representation of a non Einreichverpflichtung that would have been under the regime of the old law.
This understanding is evident when one keeps in mind the following constellation: Over a
were with the filing of the financial statements of for example two years delay by institution already multiple punishments imposed penalty in the amount of the maximum amount of € 3,600. It would mean a complete contradiction of assessment procedure when compared to that institution for further failure to act from 01.03.2011 only with forced penal amount of € 700 and sanctioned in case of not collecting the opposition and the continued failure by it to only € 700 could be. There
would mean an irrelevant difference in treatment, if - for whatever reason - in the past, failure to requests by the Company Registry to comply with the disclosure obligation, not on the time of the breach of disclosure requirements applicable Rules would be sanctioned, but are within the new law, whereas similar cases in which a corresponding constraint penalty proceedings were initiated, were sanctioned for old rights. It can not depend on the randomness of the practices of various companies book courts and governing bodies, whether completely equivalent cases under the old or new law to be assessed.
Also: Had this been
wanted to have the entire transitional provision is unnecessary so far as they could be exhausted in the fact that § 283 as amended on 1 BBG January 2011 comes into force and amended the new law also delays have the respective institutions before the 01/01/2011 thereof. The latter just sets but the last sentence of § 906, para 23 exactly the opposite, by the application of § 283 in the old version in respect of the old delays have to be arranged.
should therefore go for a request to an institution to disclose an "old" financial statements these days, will be correspond to such a request in time, be expected old otherwise with the imposition of a coercive penalty, under the ordinary procedure under § 283 UGB must . On the "grace period" until 01.03.2011 we will in these cases, at least not to rely.
