German Commodities Sector /

Public reports

Statutory reporting obligation for extractive companies (§§ 341q et seq. HGB)

The Accounting Directive Implementation Law (BilRUG) of 23 July 2015 implemented the requirements of the EU Accounting Directive 2013/34/EU of 26 June 2013 into German legislation. Many provisions embedded in the German Commercial Code (HGB) (§§ 341q et seq. HGB) largely correspond to the requirements of the EITI. All the “large” limited companies and limited liability commercial partnerships involved in the extractive sector or in the logging sector in primary forests are subject to these reporting requirements under commercial law (cf. §341q HGB). The term “large” in the legal sense refers to companies that exceed at least two of the following three criteria on two successive reporting dates (§ 267(3) sentence 1 HGB):

  1. Balance sheet total of €20 million.
  2. Net turnover of €40 million.
  3. An annual average of 250 employees.

Within the meaning of § 264d HGB capital market-oriented limited companies, as well as credit institutions and insurance companies in the legal form of limited companies (including limited liability commercial partnerships) are also subject to the reporting obligation, irrespective of their size. Besides reporting at the level of an individual company, the HGB also provides for an obligation to report at corporate level. Here it is not a prerequisite that the parent company itself is involved in the extractive sector or in the logging sector in primary forests. It is sufficient if this applies at least to a subsidiary.

The companies subject to the legal provisions are required to disclose payments made to government agencies above a “materiality threshold” of €100,000 per government agency, if these payments fall under one of the reasons for payment specified in § 341r no. 3 HGB. In addition to tax payments, this includes e.g. licenses, concessions (for both it applies to mining licenses as such) and other contractual relationships related to the extraction of natural resources. The data must be allocated to individual projects, if more than one project has been carried out in the year under review.

Similarities and differences in the reporting obligation as per EITI

In addition to the reporting obligations pursuant to §§341q et seq. HGB, certain financial flows of the extractive industries are also disclosed via the EITI (see chapter 10). The reporting requirements under commercial law largely correspond to those of the EITI. However, there are also differences.

One fundamental difference between the reporting obligations stipulated by the HGB and the EITI lies in the extent of the reporting. EITI stipulates that the participating companies from the natural resources extractive sector publish all material payments they make to government agencies. In contrast to the HGB, the material payments are not exhaustively listed by the EITI and must be clarified in the course of the EITI process (see chapter 10). The EITI standard does not provide for a distinction between payments above or below the limit of at least €100,000 annually. The stakeholders of the German EITI have agreed to adopt the materiality threshold of § 341t(4)HGB.

In contrast to the HGB provisions, EITI relies on the mutual disclosure of the payment flows for quality assurance as standard. The Federal State previously also had to grant an insight into its income from the natural resources sector in the form of payment reconciliation.

At the request of the EITI Board and the international EITI secretariat, D-EITI took part in a pilot project as part of the 3rd and the 4th D-EITI report involving the alternative method of quality assurance for the disclosed payments that dispenses with disclosure from both parties. As has been the case to date, the data is collected in addition from publicly available information on payments by extractive companies for presentation in the D-EITI report. This makes provision for one of EITI’s main concerns, which is to make the payment flows available in the form of open data, thereby supporting the public debate. Quality assurance is applied to this data instead of the payment reconciliation through systematic analysis of the state processes and systems on which royalties and tax collection is based and a subsequent risk assessment. This methodology from the pilot project was retained for the present report (cf. on this the report of the Independent Administrator in chapter 10).

D-EITI

HGB

materiality threshold

€100,000 per payment

€100,000 per payment

Company size criteria*

Total assets: €20 million Net
sales: €40 million
250 employees

Total assets: €20 million Net
sales: €40 million
250 employees

Overview of how the resource sector works
 

About context report
 

x

Cross-interest dialogue on the contribution of the raw materials sector in Germany
 

About multi-stakeholder group

x

Is reporting mandatory?
 

No, no sanctions for
companies; possibly jeopardizing the EITI status

Yes. Disclosure can be enforced by fines.
 

PUBLIC REPORTS

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Glossar

In Federal States in which legislation does not include an excavation law and the State-level Nature Conservation Law does not apply to the extraction of non-energetic, ground-based natural resources in the context of dry excavations, this type of natural resource extraction falls within the scope of the relevant state building regulations.

Legal limitations also exist: State building regulations apply to the excavation of solid rock (limestone, basalt, etc.), for example, in quarries with an area of up to 10 hectares (ha) in which no blasting is carried out. In the event that this area is exceeded, or if water bodies are formed after completion of the extraction operations, the German Federal Immission Control Act (BImSchG) and/or Water Resources Act (WHG) are applicable.
In Bavaria and North Rhine-Westphalia, the above-ground excavation of non-energetic, ground-based natural resources in the context of dry excavations is determined at state level by the existing excavation laws (AbgrG). For the excavation of solid rock (limestone, basalt, etc.) in quarries where blasting does not occur, the AbgrG applies to sites with an area of up to 10 ha. In the event that this area is exceeded, or if water bodies are formed after completion of the extraction operations, the German Federal Immission Control Act (BImSchG) and/or Water Resources Act (WHG) are applicable. In the other Federal States, this type of natural resources extraction is regulated by the respective state building regulations or by the state-level nature conservation laws.

In general, the AbgrG applies to those raw materials the excavation of which is not directly subject to mining law or the mining authorities. These raw materials include (in particular) gravel, sand, clay, loam, limestone, dolomite and other rocks, bog mud and clays. However, the jurisdiction between AbgrG and mining law can vary from case to case in the case of certain raw materials, such as quartz gravels. The requested authority must always verify its own jurisdiction in each case. The AbgrG also encompasses surface area usage and the subsequent rehabilitation of the area.
The German Federal Immission Control Act (BImSchG) is the most important and practice-relevant law in the field of environmental law. It constitutes the basis for the approval of industrial and commercial installations. In the natural resources extraction industry, quarrying companies must have approval to extract stones and earth. Every quarrying area of 10 hectares or more must undergo a full approval procedure, including public participation and UVP (environmental impact assessment). A more simplified approval procedure is used for quarrying areas of less than 10 hectares.

The sphere of responsibility for the legal immission control approval procedure is fully specified in the Immission Control Acts of the Federal States. The Federal States are tasked with the administrative enforcement of the approval procedure. Each individual state’s Environment Ministry – the highest local immission protection authority – usually bears the responsibility for this procedure. Subordinate authorities include regional councils, district authorities and lower-level administrative authorities. Administrative jurisdiction generally lies with the lower-level administrative authorities.
The GDP measures the value of goods and services produced domestically (creation of value) within a given period (quarter, year). The Federal Office of Statistics calculates the GDP as follows: production value minus intermediate consumption = the gross value added; plus taxes on products and minus subsidies = GDP
The gross value added is calculated by deducting intermediate consumption from the production values, so it only includes the value added created during the production process. The gross value added is valued at manufacturing prices, i.e. without the taxes due (product taxes), but including the product subsidies received.

During the transition from gross value added (at manufacturing prices) to GDP, the net taxes (product taxes less product subsidies) are added globally to arrive at an assessment of the GDP at market prices’. Source: Destatis
The planning approval procedure under mining law is used for the approval procedure of a general operating plan for projects which require an environmental impact assessment (§§ 52(2a), in conjunction with 57 a of the BBergG).
There are different definitions and methodological approaches at the international as well as at the national level as to what subsidies are and how they are calculated. According to the definition of the German government’s subsidy report, this report considers federal subsidies for private companies and economic sectors (ie grants as cash payments and tax breaks as special tax exemptions) which are relevant to the budget. Subsidies at the federal level can be viewed via the subsidy reports of the federal states (see Appendix 5 of the German government subsidy report).
In compliance with § 68(1), Water Resources Act (WHG), the excavation of landowners’ natural resources such as gravel, sand, marl, clay, loam, peat and stone in wet extraction operations requires a planning approval procedure. The reason for this is that groundwater is exposed in wet extraction, resulting in above-ground water. The planning approval procedure is implemented by lower-level water authorities.

The procedural steps of the planning approval procedure are governed by the general provisions of §§ 72 to 78 of the Administrative Procedures Act (VerwVfG). Within the meaning of § 68(3), nos. 1 and 2 of the WHG, the plan may only be established or approved if an impairment of the common good is not to be expected and other requirements of the WHG as well as other public-law provisions are fulfilled.