Tasks and powers of the exchange supervisory authority

(1) The exchange supervisory authority exercises supervision over the exchange under the provisions of this Act. Its supervision covers in particular the Exchange Council, the Exchange Management, the Sanctions Committee and the Trading Surveillance Office (exchange bodies), as well as the exchange operator, the facilities relating to exchange activity, including the areas outsourced under section 5(3), and the open market. Supervision extends to compliance with exchange-law provisions and orders, the orderly conduct of trading at the exchange, and the orderly performance of exchange transactions (exchange transaction settlement).
(2) The exchange supervisory authority is entitled to participate in the deliberations of the exchange bodies. The exchange bodies are obliged to support the exchange supervisory authority in the performance of its tasks.
(3) The exchange supervisory authority performs the tasks and exercises the powers assigned to it under this Act only in the public interest.
(4) The exchange supervisory authority may, insofar as necessary for the performance of its tasks, and even without particular cause, conduct examinations at the exchange, at the exchange operator and, insofar as activities and processes have been outsourced, at outsourcing undertakings, as well as at trading participants, indirect trading participants and at the issuers of securities admitted to the regulated market; it may also order the exchange operator to have an examination conducted at the operator's expense by a suitable external examiner to be appointed by the exchange operator in agreement with the exchange supervisory authority. The exchange supervisory authority may require information, the production of documents or other data, and the surrender of copies, from anyone, and may summon and examine persons, in order to monitor compliance with the prohibitions or requirements of this Act or of the regulations named in section 1(1), first sentence. The exchange supervisory authority may require that the transmission of information and documents take place on automatically processable data media. To clarify whether exchange-law provisions or orders are being infringed, or whether other irregularities threaten or exist that may impair the orderly conduct of trading at the exchange or the settlement of exchange transactions, it may in particular 1. require from trading participants the identity of the principals and of the persons entitled or obliged from the transactions carried out, and of changes in trading participants' holdings of financial instruments traded on the exchange, 2. require from principals and entitled or obliged persons information on the transactions carried out, including the identity of the persons involved in those transactions, 3. require from central securities depositories and systems for securing the performance of exchange transactions information on changes in trading participants' holdings of financial instruments traded on the exchange, 4. require from the exchange, the trading participants and undertakings connected with them the production of already existing recordings of telephone conversations and data transmissions; the fundamental right under Article 10 of the Basic Law is thereby restricted, and the persons concerned are to be notified under section 101 of the Code of Criminal Procedure, and 5. require at any time from trading participants engaging in algorithmic trading within the meaning of section 80(2), first sentence of the Securities Trading Act, information on their algorithmic trading, the systems used for that trading, and a description of the algorithmic trading strategies and the details of the trading parameters or trading limits to which the system is subject. Persons obliged to provide information must permit the officials of the exchange supervisory authority to enter their land and business premises during normal business hours, insofar as necessary for the exchange supervisory authority to perform its tasks. Entry outside those hours, or, where the business premises are located in a dwelling, is permissible without consent only to prevent imminent dangers to public security and order, and must be tolerated to that extent. The fundamental right to the inviolability of the home (Article 13 of the Basic Law) is thereby restricted. The powers and obligations under this subsection apply accordingly where persons and bodies engaged by the exchange supervisory authority act under this Act. A person obliged to provide information may refuse to answer questions the answering of which would expose that person, or one of the relatives named in section 383(1), nos. 1 to 3 of the Code of Civil Procedure, to the risk of criminal prosecution or of proceedings under the Act on Regulatory Offences. The person obliged must be informed of their right to refuse to answer. The exchange supervisory authority may, within its statutory powers, require the provision of information and the production of documents without the addressee first being given an opportunity to comment on the facts material to the decision.
(4a) The exchange supervisory authority may, insofar as necessary for the performance of its tasks, and even without particular cause, require from the exchange and from the exchange operator information on the orders generated through algorithmic trading within the meaning of section 80(2), first sentence of the Securities Trading Act. It may also require access, in that regard, to the order book or the corresponding data from the exchange.
(5) The exchange supervisory authority is empowered to issue orders to maintain order and for business transactions at the exchange. It may issue orders against anyone that are suitable and necessary to prevent infringements of exchange-law provisions and orders, or to prevent or eliminate irregularities that may impair the orderly conduct of trading at the exchange, the settlement of exchange transactions, or their supervision. For that purpose it may in particular 1. order the suspension or discontinuation of exchange trading in individual or multiple financial instruments, rights or economic assets, 2. prohibit the exchange from using a central counterparty, a clearing house or an exchange settlement system, where the orderly conduct of trading at the exchange or the settlement of exchange transactions is thereby impaired, or where the conditions of Article 7(4) or Article 8(4) of Regulation (EU) No 648/2012 of the European Parliament and of the Council of 4 July 2012 on OTC derivatives, central counterparties and trade repositories (OJ L 201, 27.7.2012, p. 1) exist, 3. prohibit the use of an external settlement system, or 4. prohibit the use of an algorithmic trading strategy, insofar as this is required to enforce the provisions of this Act. The exchange supervisory authority must publish a measure under the first sentence, no. 1 without delay on its website.
(5a) Where the Management has revoked the admission of a financial instrument under section 39 or suspended or discontinued trading in it under section 25(1), the exchange supervisory authority orders the revocation of admission, or the suspension or discontinuation of trading, of that financial instrument or of derivatives connected with it within the meaning of Annex I, Section C, nos. 4 to 10 of Directive 2014/65/EU of the European Parliament and of the Council of 15 May 2014 on markets in financial instruments and amending Directives 2002/92/EC and 2011/61/EU (OJ L 173, 12.6.2014, p. 349; L 74, 18.3.2015, p. 38; L 188, 13.7.2016, p. 28; L 273, 8.10.2016, p. 35; L 64, 10.3.2017, p. 116), as last amended by Directive (EU) 2016/1034 (OJ L 175, 30.6.2016, p. 8), also at other exchanges within its area of competence, insofar as the revocation of admission or the suspension or discontinuation of trading is due to a suspected market abuse, a takeover offer, or the non-publication of inside information about the issuer, or an infringement of Articles 7 and 17 of Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC (OJ L 173, 12.6.2014, p. 1; L 287, 21.10.2016, p. 320; L 306, 15.11.2016, p. 43; L 348, 21.12.2016, p. 83), as last amended by Regulation (EU) 2016/1033 (OJ L 175, 30.6.2016, p. 1). This does not apply in cases in which the revocation, suspension or discontinuation of trading could materially damage investor interests or the orderly functioning of the market.
(5b) The exchange supervisory authority notifies a decision under subsection (5a), first sentence without delay to the Federal Financial Supervisory Authority (BaFin), to other domestic exchange supervisory authorities that supervise exchanges at which the financial instruments concerned are also traded, and to the European Securities and Markets Authority, and publishes that decision without delay. Where it takes no measures at further exchanges within its area of competence, it notifies the authorities named in the first sentence of the reasons for this.
(5c) Where the exchange supervisory authority becomes aware of the revocation of admission, or the suspension or discontinuation of trading, of a financial instrument or of a derivative connected with it within the meaning of Annex I, Section C, nos. 4 to 10 of Directive 2014/65/EU at an exchange in another Member State of the European Union or in another contracting state to the Agreement on the European Economic Area, or at another domestic exchange, it orders the revocation of admission, or the suspension or discontinuation of trading, of the financial instruments concerned within the meaning of the first sentence at exchanges within its area of competence, insofar as the revocation of admission or the suspension or discontinuation of trading is due to a suspected market abuse, a takeover offer, or the non-publication of inside information about the issuer, or an infringement of Articles 7 and 17 of Regulation (EU) No 596/2014. Subsection (5a), second sentence and subsection (5b) apply accordingly.
(6) Where the exchange supervisory authority establishes facts that may justify the withdrawal or revocation of the licence for determining the exchange price or the admission of the undertaking, or other measures of the Management, it must notify the Management.
(7) The body competent under Land law is empowered to transfer the tasks and powers of the exchange supervisory authority to another authority.
(8) The exchange supervisory authority may avail itself of other persons and bodies in performing its tasks.
(9) An objection and an action for annulment against measures under subsections (4) and (5) have no suspensive effect.
(10) Where the exchange or one of its bodies repeatedly and persistently fails to comply with the orders of the exchange supervisory authority, the exchange supervisory authority may, insofar as its other powers are insufficient and insofar and for so long as the orderly conduct of exchange operations so requires, appoint agents who perform the tasks of the exchange or of one of its bodies at the expense of the exchange operator.
(11) Addressees of measures taken by the exchange supervisory authority under subsection (4) on account of a possible infringement of the prohibitions in section 26 of this Act or of Article 14 or Article 15 of Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC (OJ L 173, 12.6.2014, p. 1), in its respective current version, may not inform persons other than state bodies and persons subject to a statutory duty of confidentiality by virtue of their profession, of those measures or of an investigation proceeding thereby initiated.
(12) The exchange supervisory authority is the competent authority within the meaning of Title II and of Article 22 and Article 25(2), Articles 29 to 31 and 36 of Regulation (EU) No 600/2014, insofar as the obligations of exchange operators and exchanges are concerned.