Action against unauthorised investment business

(1) Where collective asset management is conducted without the required registration under section 44, or without the required authorisation under sections 20, 21, or 22, or under Article 6 of Directive 2009/65/EC or Directive 2011/61/EU, or where, in addition to collective asset management, the services or ancillary services listed in section 20(2) or (3) are provided without the authorisation under sections 20, 21, or 22, or under Article 6 of Directive 2009/65/EC (unauthorised investment business), the Federal Institute may take action against this.
(2) In the case of subsection (1), the Federal Institute may 1. order the immediate cessation of the business operations and the prompt winding-up of these transactions, addressed to the undertaking and to its shareholders and members of its governing bodies; for legal persons and commercial partnerships, it also has the rights named in section 38(1) and (2) of the Banking Act; 2. issue instructions for the winding-up, and 3. appoint a suitable person as liquidator. The Federal Institute may publish its measures under points 1 to 3; personal data may be published only insofar as this is necessary to avert danger.
(3) The powers of the Federal Institute under subsections (1) and (2) also apply in respect of an undertaking that is involved in the initiation, conclusion, or winding-up of these transactions, and in respect of its shareholders and the members of its governing bodies.
(4) The liquidator is entitled to apply for the opening of insolvency proceedings over the assets of the undertaking. The prior activity as liquidator, and the filing of the insolvency application by the liquidator, do not constitute prior involvement excluding the independence of the insolvency administrator. Where the liquidator is not to be appointed as insolvency administrator, the competent insolvency court must give the Federal Institute the opportunity to comment.
(5) The liquidator receives appropriate remuneration from the Federal Institute, as well as reimbursement of his or her expenses. The undertaking concerned must separately reimburse the Federal Institute for the amounts paid; at the request of the Federal Institute, it must make an advance payment for the amounts required under the first sentence. The Federal Institute may instruct the undertaking concerned to pay the amount fixed by the Federal Institute directly to the liquidator in the name of the Federal Institute, where this does not raise concerns about affecting the independence of the liquidator.