When is the use of a seal obligatory?
Auditors and certified public accountants are obliged to use a seal when they make declarations that are reserved for them by law (section 48 (1) sentence 1 WPO). This includes both formal and substantive laws (e.g. ordinances). The most important statutory reserved task is the performance of annual audits according to § 316 ff. HGB. The auditor’s report to be issued pursuant to § 322 HGB – executed in the auditor’s copy – must be sealed in this context. The auditor’s report is always signed at the end of the report and before the annexes to the auditor’s report, thus regularly following the reproduction of the auditor’s opinion, as this is also required by law pursuant to § 321 HGB (IDW PS 450 n.F. Tz. 114). The auditor’s confirmation of the appropriateness of a settlement in a structural measure under company law (e.g. § 327c para. 2 sentence 2 AktG) must also be sealed. Other bases for issuing the declaration below this level, e.g. official instructions, regulations in articles of association, partnership agreements or other contracts do not constitute statutory provisions.
When is the use of a seal voluntary?
For certain declarations, section 48 (1) sentence 2 WPO does not provide for an obligation, but for the authority to keep a seal. The prerequisite for this is that declarations on audit results are made or expert opinions are issued within the scope of the professional activity as a certified public accountant, i.e. not in the private sphere or within the scope of a second profession, if any. The seal may be used for voluntary audits of companies that are not subject to a statutory audit requirement, e.g. small corporations. In this area, there are no legal regulations that require an audit by an auditor or at least reserve the activity (audit and issuing of an audit opinion) to the auditor. Nothing else applies even if the audit is carried out in accordance with the provisions of the HGB and the audit result is summarised in an “auditor’s report” which is modelled on the statutory auditor’s report in § 322 HGB. Neither the use of the term “auditor’s report” nor the issuing of a corresponding statement – even in this formulation – is legally reserved for the auditor/vBP.
Where is the seal placed and how is it to be designed?
The auditor must sign the written auditor’s report (section 322 (1) sentence 1 HGB), stating the place and date (section 322 (7) sentence 1 HGB) and seal it (section 48 (1) sentence 1 WPO). Auditors must use the professional title “Wirtschaftsprüfer/Wirtschaftsprüferin” without adding other professional titles (§ 18 WPO). The place and date are usually indicated below the text of the auditor’s report, but above the signatures and the seal. The signature of the auditor’s report always takes place at the end of the reporting and before the annexes to the auditor’s report, thus regularly following the reproduction of the auditor’s report.
The Chamber of Public Accountants shall, within the framework of the professional statutes for public accountants/sworn auditors, make more detailed provisions on the design (size and form) of the seal as well as the information to be included in the seal (§ 20 BS WP/vBP).
Can electronic seals also be used?
An electronic seal is permissible pursuant to § 20 (2) sentence 2 BS WP/vBP. This makes it possible to prepare the audit report and the auditor’s report in compliance with the law exclusively as electronic originals. The auditor must provide the audit reports and the auditor’s report file with the electronic seal, his name and a qualified electronic signature (§ 321, para. 242 Beck’scher Bilanz-Kommentar, 12th edition).
What are the consequences of a missing auditor’s seal?
It is true that auditors and auditing firms are obliged to use a seal when making declarations that are reserved by law for members of the profession. However, the seal is neither a prerequisite for the effectiveness of an auditor’s report under commercial law nor does it have any effects under liability law (WPO Commentary, 3rd edition, p. 678). With the focus of numerous professional duties on legally prescribed audits of financial statements by the APAReG and the new version of the professional statutes WP/vBP in 2016, the seal has lost importance with regard to further consequences under professional law. What remains is the duty for the auditor to be aware of the special professional duties that arise from the authority to issue statutory audit opinions and to use a seal.