Public reports
Statutory reporting obligation for extractive sector companies (BilRUG)
The Accounting Directive Implementation Law (BilRUG) of 23 July 2015 implemented the require- ments of the EU Accounting Directive 2013/34/EU of 26 June 2013 into German legislation. Many provi- sions embedded in the German Commercial Code (HGB) (§§ 341q et seq. HGB) largely correspond to the requirements of the EITI. All the “large” limited com- panies 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):
- Balance sheet total of €20 million.
- Net turnover of €40 million.
- An annual average of 250 employees.
Within the meaning of § 264d HGB capital market- oriented limited companies, as well as credit institu- tions and insurance companies in the legal form of limited companies (including limited liability com- mercial 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 EUR100,000 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.
The payment reports in accordance with the statutory reporting requirements can be accessed under www.bundesanzeiger.de.
An overview of the statutory payment reports pursuant to sections 341q et seq. HGB for 2019 and a comparison with the reporting under D-EITI for 2019 can be found here: View data
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 9). 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 9). The EITI standard does not provide for a distinction between payments above or below the limit of at least EUR100,000 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 is taking part in a pilot project as part of the 4th D-EITI report involving the alterna- tive 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 col- lected in addition from publicly available information on payments by extractive companies for presenta- tion 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 assur- ance is then applied to this data instead of the pay- ment reconciliation through systematic analysis of the state processes and systems on which royalties and tax collection is based and a subsequent risk assess- ment (cf. the Independent Administrator’s report in chapter 9 for this).
D-EITI | HGB | |
materiality threshold | €100,000 per payment | €100,000 per payment |
Company size criteria* | Total assets: €20 million Net | Total assets: €20 million Net |
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 | Yes. Disclosure can be enforced by fines. |
* A company is considered “large” by the legislator if it exceeds at least two of the three criteria stated in the table on two successive balance sheet dates (section 267(3) sentence 1, (4) sentence 1 HGB).
