Supervision; Authorisation to Issue Statutory Instruments

(1) The supervisory authorities shall exercise supervision over the obliged entities.
(2) The supervisory authorities may, within the scope of the tasks assigned to them by statute, take the appropriate and necessary measures and orders to ensure compliance with the requirements laid down in this Act and in the statutory instruments issued under this Act. In particular, the supervisory authorities may, in this connection, ensure by necessary measures and orders that the obliged entities also comply with these requirements in the individual case and do not, contrary to these requirements, establish or continue business relationships and carry out transactions. They may also exercise, for this purpose, the powers granted to them for other supervisory tasks. An objection and an action for rescission against these measures have no suspensive effect.
(2a) The supervisory authority under section 50, no. 1 shall, without prejudice to the supervision under subsection (1), exercise supervision over compliance with Regulation (EU) 2023/1113. It may take the necessary orders to ensure compliance with Regulation (EU) 2023/1113.
(3) The supervisory authority under section 50, no. 1, insofar as its supervisory activity relates to the obliged entities referred to in section 50, no. 1, letters g) and h), or to the obliged entities referred to in section 50, no. 1, letter b), insofar as they satisfy the conditions of section 2(6), no. 16 of the Banking Act, and the supervisory authorities under section 50, nos. 3 to 9, may carry out examinations of obliged entities as to compliance with the requirements laid down in this Act. Examinations may be carried out on-site and elsewhere without particular cause. The supervisory authorities may transfer the conduct of examinations, by contract, to other persons and bodies. The frequency and intensity of examinations shall be oriented to the money laundering and terrorist financing risk profile of the obliged entities, which is to be reassessed at regular intervals and on the occurrence of important events or developments in their management and business activity.
(4) For measures and orders under this provision, the supervisory authority under section 50, nos. 8 and 9 may levy costs to cover administrative expense.
(5) The supervisory authority under section 50, no. 1, insofar as its supervisory activity relates to the obliged entities referred to in section 50, no. 1, letters g) and h), or to the obliged entities referred to in section 50, no. 1, letter b), insofar as they satisfy the conditions of section 2(6), no. 16 of the Banking Act, and the supervisory authorities under section 50, nos. 3 to 9, may temporarily prohibit an obliged entity whose activity requires authorisation and has been authorised by the supervisory authority from carrying on its business or profession, or may revoke the authorisation vis-à-vis that entity, where the obliged entity has intentionally or negligently 1. infringed the provisions of this Act, the regulations issued to implement this Act, or orders of the competent supervisory authority, 2. continued that conduct despite a warning by the competent supervisory authority, and 3. the infringement is persistent. Where a member of senior management, or another employee, of an obliged entity has intentionally or negligently committed an infringement under the first sentence, the supervisory authority under section 50, no. 1, insofar as its supervisory activity relates to the obliged entities referred to in section 50, no. 1, letters g) and h), or to the obliged entities referred to in section 50, no. 1, letter b), insofar as they satisfy the conditions of section 2(6), no. 16 of the Banking Act, and the supervisory authorities under section 50, nos. 3 to 9, may impose on the offender a temporary prohibition on exercising a management position with obliged entities under section 2(1). Where the supervisory authority is not the body that has granted the obliged entity authorisation to exercise its activity, the licensing authority shall, at the request of the supervisory authority that has established an infringement under the first sentence, conduct the procedure under the first or second sentence.
(5a) Where the authority competent for supervising an obliged entity under section 50, no. 1, letters g) and h), or the obliged entities under section 50, no. 1, letter b), insofar as they satisfy the conditions of section 2(6), no. 16 of the Banking Act, is an authority in another Member State of the European Union or in another state party to the Agreement on the European Economic Area, the supervisory authority under section 50, no. 1 may, where the foreign authority itself takes no measures or the measures it has taken prove insufficient and immediate remedy is called for, after informing the competent foreign authority, take the measures necessary to remedy a serious infringement. Insofar as necessary, it may prohibit the conduct of new business domestically. In urgent cases the supervisory authority under section 50, no. 1 may take the necessary measures before giving notice. The measures must be limited in time and proportionate having regard to the purpose they pursue, namely averting serious infringements of the provisions of this Act, of the regulations issued to implement this Act, or of orders of the competent supervisory authorities. They shall be brought to an end once the serious infringements established have been averted. In urgent cases under the third sentence, the foreign authority shall be informed without delay of the measures taken.
(5b) Obliged entities under section 2(1), no. 13 shall register with the supervisory authority, stating their specific activity, where they are not already subject to a notification, registration, licensing or authorisation requirement under other provisions. Insofar as no power exists under other provisions, the supervisory authority may remove members of the management and executive level of the obliged entity, insofar as reasonable grounds exist to assume that they do not have the requisite suitability or reliability. The supervisory authority may prohibit obliged entities, in respect of whom reasonable grounds exist to assume that the beneficial owner does not have the requisite suitability or reliability, from carrying on the service under section 2(1), no. 13. Subsection (5), first and second sentences apply correspondingly.
(6) The supervisory authority competent under section 50, no. 9 shall also exercise the supervision assigned to it under Article 55(1) of Commission Regulation (EU) No 1031/2010 of 12 November 2010 on the timing, administration and other aspects of auctioning of greenhouse gas emission allowances pursuant to Directive 2003/87/EC of the European Parliament and of the Council establishing a scheme for greenhouse gas emission allowance trading within the Community (OJ L 302, 18.11.2010, p. 1).
(7) The supervisory authority competent under section 50, nos. 8 and 9 for obliged entities under section 2(1), no. 15 may, for the performance of its tasks, obtain information in an individual case from an obliged entity under section 2(1), no. 1 or no. 3 concerning payment accounts within the meaning of section 1(17) of the Payment Services Supervision Act and payment transactions executed thereon by 1. an organiser or intermediary of internet gambling, irrespective of whether it holds a gambling permit, and 2. a player.
(8) The supervisory authority shall make available to obliged entities regularly updated guidance notes on interpretation and application for the implementation of the due diligence obligations and internal safeguards under the statutory provisions for the prevention of money laundering and terrorist financing. It may also fulfil this obligation by approving guidance notes prepared by associations of obliged entities.
(9) The supervisory authorities shall maintain the following data, in the form of a statistic, to document their supervisory activity: 1. data on supervisory activity per calendar year, in particular: a) the number of persons employed by the supervisory authority, measured in full-time equivalents, entrusted with the supervision of obliged entities under section 2(1); b) the number of on-site examinations conducted and other examination measures taken, broken down by the obliged entities under section 2(1) concerned; c) the number of measures under letter b) in which the supervisory authority established a breach of an obligation under this Act or under a statutory instrument issued under this Act, and the number of cases in which the supervisory authority otherwise obtained knowledge of such a breach; and d) the nature and scope of the measures thereupon finally taken by the supervisory and administrative authority; these include the number of aa) warnings issued, bb) fines imposed, including the respective amount, broken down by whether and to what extent a publication under section 57 took place, cc) removals ordered of anti-money laundering officers or members of the management, dd) revocations of authorisation ordered, and ee) other measures taken; e) the nature and scope of the measures taken to inform obliged entities under section 2(1) of the due diligence obligations and internal safeguards to be observed by them; 2. the number of suspicious activity reports filed by the supervisory authority under section 44 per calendar year, broken down by the obliged entities under section 2(1) concerned. The supervisory authorities shall transmit the data under the first sentence, as at 31 December of the reporting year, to the Federal Ministry of Finance and the Financial Intelligence Unit in electronic form by 31 March of the following year. The Federal Ministry of Finance and the Financial Intelligence Unit may provide a common form for this purpose. The supervisory authorities shall notify the Financial Intelligence Unit without delay of their contact details, particulars of their area of competence, and changes to that data.
(10) The competent supervisory authorities shall inform the Federal Ministry of Finance before ordering or applying the measures referred to in section 15(5a). The Federal Ministry of Finance shall inform the European Commission before the ordering or application of the measures referred to in section 15(5a) by the competent supervisory authorities, and of the issuance of a statutory instrument under section 15(10), first sentence, no. 2.
(11) The supervisory authorities are each authorised, by way of a general administrative order, to determine 1. which reports, notifications, statements, applications and other information, together with the necessary supporting documents, that are to be submitted to the supervisory authorities under this Act or under other Acts, under the statutory instruments issued under this Act, and under requests for information issued under this Act, must be submitted electronically, and 2. which electronic communication procedure is to be used for the respective submission obligation to the supervisory authorities, and what provisions apply to the use of the respective electronic communication procedure. The general administrative order may make further provision on the nature, scope, time, form and data format of a submission under the first sentence, no. 1.
(12) The Federal Ministry of Finance is authorised, by statutory instrument not requiring the consent of the Bundesrat, to determine 1. which reports, notifications, statements, applications and other information, together with the necessary supporting documents, that are to be submitted to the supervisory authority under section 50, nos. 1 and 2, insofar as the Federal Financial Supervisory Authority is the competent supervisory authority, under this Act or under other Acts, under the statutory instruments issued under this Act, and under requests for information issued under this Act, must be submitted electronically, and 2. which electronic communication procedure is to be used for the respective submission obligation to the supervisory authority under section 50, nos. 1 and 2, insofar as the Federal Financial Supervisory Authority is the competent supervisory authority, and what provisions apply to the use of the respective electronic communication procedure, including the obligation to access an electronic communication procedure within the meaning of sections 4f and 4g of the Financial Services Supervision Act. Subsection (11), second sentence applies correspondingly. The Federal Ministry of Finance may transfer the authorisation under the first sentence, by statutory instrument not requiring the consent of the Bundesrat, to the Federal Financial Supervisory Authority.