Competent authority; Supervision; Power to issue orders; Authorisation to issue statutory instruments

(1) The Federal Institute exercises supervision in accordance with the provisions of this Act.
(2) Insofar as the external capital management company provides the services and ancillary services named in section 20(2), points 1 to 3, 8, and 10, and subsection (3), points 2 to 5 and 11, in respect of one or more of the instruments listed in Annex I, Section C, of Directive 2014/65/EU, section 63(1) to (12), first, second, and sixth sentences, and (14), section 64(1), first and second sentences, and (3) to (8), sections 66, 67, and 70, section 80(1), first and second sentences, points 1 and 2, and (9) to (11), section 83(1) to (8), section 84(1), (4), and (7), and section 87(1) and (2) of the Securities Trading Act apply correspondingly. Insofar as, in the cases of the first sentence, the external capital management company provides only services and ancillary services within the meaning of section 20(2), points 1 and 2, or subsection (3), points 2, 3, and 5, it must, in addition to the requirements under section 25(1), point 1, letter b, be equipped with initial capital in the amount of half of the amount named in section 17(1), point 2, of the Securities Institutions Act. Insofar as it also provides the service or ancillary service within the meaning of section 20(2), point 3, or subsection (3), point 4, the external capital management company must, in addition to the requirements under section 25(1), point 1, letter b, be equipped with initial capital in the amount of half of the amount named in section 17(1), point 3, of the Securities Institutions Act. The first sentence applies to the ancillary services named in section 20(2), first sentence, point 10, and subsection (3), first sentence, point 11, only insofar and to the extent that these relate to the services and ancillary services named in section 20(2), first sentence, points 1 to 3 and 8, or in section 20(3), first sentence, points 2 to 5.
(3) The Federal Institute decides, in cases of doubt, that a domestic undertaking is subject to the provisions of this Act, or that an investment fund within the meaning of section 1(1) exists. Its decision is binding on the administrative authorities.
(4) The Federal Institute monitors compliance with the provisions of section 26(2) to (8), section 27, section 51(8), section 54(4), first sentence, in conjunction with section 28(1), fourth sentence, and section 66(4), first sentence, in conjunction with section 28(1), fourth sentence, by foreign AIF management companies whose reference member state is not the Federal Republic of Germany, or by EU management companies, where the foreign AIF management company or the EU management company manages or markets investment funds domestically through a branch.
(5) The Federal Institute further monitors
1. compliance with sections 293 to 311, 314 to 321, 323, and 330a, and the other provisions of German law to be observed in marketing,
2. before the point in time named in the delegated act adopted on the basis of Article 66(3) in conjunction with Article 67(6) of Directive 2011/61/EU, compliance with sections 329 and 330, and
3. after the point in time named in point 2, compliance with sections 322 and 324 to 328, by the management companies and by other undertakings supervised by the Federal Institute.
(5a) For capital management companies, the Federal Institute is the sectorally competent authority within the meaning of Article 25a of Regulation (EC) No 1060/2009 of the European Parliament and of the Council of 16 September 2009 on credit rating agencies (OJ L 302, 17.11.2009, p. 1), as last amended by Regulation (EU) No 462/2013 (OJ L 146, 31.5.2013, p. 1), as amended from time to time. Insofar as Regulation (EC) No 1060/2009, or the legal acts adopted on its basis, do not provide otherwise, sections 1 to 16 of this Act, with the exception of section 8, second sentence, in conjunction with section 9(1), fourth sentence, of the Banking Act, apply correspondingly for the exercise of its supervision in this respect.
(6) The Federal Institute monitors compliance with the prohibitions and requirements of this Act and the provisions issued under this Act, and may make orders that are suitable and necessary to enforce them. The Federal Institute is further empowered, within the framework of supervision, to make all orders that are necessary and suitable to ensure compliance with the rules provided for in the investment conditions, the articles of association, or the partnership agreement. Insofar as there are indications that this is necessary for monitoring compliance with a prohibition or requirement of this Act, the Federal Institute may, in doing so, in particular
1. obtain information from anyone, demand the production of documents and the surrender of copies, summon and examine persons, and
2. request existing recordings of telephone conversations and data transmissions; the fundamental right under Article 10 of the Basic Law is restricted to this extent. Insofar as data from the core area of private life is obtained from recordings of telephone conversations, this may not be stored, used, or disclosed, and must be deleted without delay. Auditors must, on request, provide the Federal Institute with information and produce documents, insofar as this is necessary for the examination; the duty of the statutory auditors to provide information is limited to facts that became known to them in the course of the audit. Section 6(15) of the Securities Trading Act applies correspondingly to the right to refuse to provide information and the duty to give notice of this right. Within the scope of the tasks assigned to it, the Federal Institute must counteract irregularities that impair the proper management of investment funds, the marketing of investment funds, the proper provision of services or ancillary services under section 20(2) and (3), or the activity of a depositary under this Act, or that may cause significant disadvantages to the financial market or the market for a financial instrument. The Federal Institute may make orders that are suitable and necessary to remedy or prevent these irregularities.
(6a) The Federal Institute is the authority competent under this Act within the meaning of Regulation (EU) No 1286/2014 of the European Parliament and of the Council of 26 November 2014 on key information documents for packaged retail and insurance-based investment products (PRIIPs) (OJ L 352, 9.12.2014, p. 1; L 358, 13.12.2014, p. 50), for management companies that manufacture, sell, or advise on PRIIPs within the meaning of Article 4, point 3, of that Regulation, insofar as these PRIIPs are at the same time investment funds. The Federal Institute may, in respect of any management company that advises on or sells a PRIIP within the meaning of Article 4, point 3, of Regulation (EU) No 1286/2014, or that is a manufacturer of PRIIPs within the meaning of Article 4, point 4, of Regulation (EU) No 1286/2014, take all measures that are suitable and necessary to monitor compliance with the requirements of Regulation (EU) No 1286/2014 and the delegated acts and regulatory technical standards adopted by the European Commission on the basis of that Regulation. In particular, it may
1. temporarily or permanently prohibit the marketing, distribution, or sale of the PRIIP where there is an infringement of Article 5(1), Articles 6, 7, and 8(1) to (3), Articles 9, 10(1), Article 13(1), (3), and (4), and Articles 14 and 19 of Regulation (EU) No 1286/2014,
2. prohibit the provision of a key information document that does not satisfy the requirements of Articles 6 to 8 or 10 of Regulation (EU) No 1286/2014, and
3. require the manufacturer of the PRIIP to publish a new version of the key information document, where the published version does not satisfy the requirements of Articles 6 to 8 or 10 of Regulation (EU) No 1286/2014, and
4. publish a warning on its website, naming the responsible management company and the nature of the infringement, where there is an infringement of one of the provisions named in point 1.
(7) The Federal Institute may, in particular, also demand information on the business affairs and the production of the documents of persons and undertakings in respect of whom facts justify the assumption that they are marketing investment funds without the following notifications having been given:
1. the notification required under section 310(1), section 316(1), section 320(1), section 321(1), section 323(1), or section 330a(2), and
2. before the point in time named in the delegated act adopted on the basis of Article 66(3) in conjunction with Article 67(6) of Directive 2011/61/EU, the notification required under section 329(2) or section 330(2), and
3. after the point in time named in point 2, the notification required under section 322(2), section 324(2), section 325(1), section 326(2), section 327(1), or section 328(2).
(8) The Federal Institute may demand from an EU AIF management company or a foreign AIF management company that manages or markets AIFs domestically the production of the information necessary to verify whether the relevant provisions, for the monitoring of which the Federal Institute is responsible, are being complied with by the EU AIF management company or the foreign AIF management company. The first sentence applies correspondingly to EU UCITS management companies that manage UCITS domestically.
(8a) The Federal Institute may, by way of general administrative order, impose restrictions on the granting of loans by capital management companies that grant loans for the account of an AIF for the construction or acquisition of residential real estate located domestically, where and insofar as this is necessary to counteract a disruption of the functioning of the domestic financial system or a threat to financial stability domestically. Section 48u(1), second to fifth sentences, and (2) to (4) and (6) of the Banking Act apply correspondingly. The Federal Ministry of Finance is authorised to issue, by statutory instrument not requiring the consent of the Bundesrat, more detailed provisions in accordance with the correspondingly applicable section 48u(5), points 1 to 5, of the Banking Act.
(9) The Federal Institute is the competent authority within the meaning of Regulation (EU) 2015/2365 of the European Parliament and of the Council of 25 November 2015 on transparency of securities financing transactions and of reuse and amending Regulation (EU) No 648/2012 (OJ L 337, 23.12.2015, p. 1), insofar as that Regulation contains rights and obligations concerning the management companies and investment funds within the meaning of this Act. The Federal Institute is empowered to take all measures that are suitable and necessary to monitor whether Regulation (EU) 2015/2365 and the delegated acts and technical regulatory standards adopted by the European Commission on its basis are complied with. In particular, it may exercise the powers named in Articles 22 and 28 of Regulation (EU) 2015/2365, and the powers referred to therein.
(10) The Federal Institute is the competent authority within the meaning of Regulation (EU) 2016/1011 of the European Parliament and of the Council of 8 June 2016 on indices used as benchmarks in financial instruments and financial contracts or to measure the performance of investment funds, and amending Directives 2008/48/EC and 2014/17/EU and Regulation (EU) No 596/2014 (OJ L 171, 29.6.2016, p. 1), insofar as that Regulation contains rights and obligations concerning the management companies and investment funds within the meaning of this Act. The Federal Institute is empowered to take all measures that are suitable and necessary to monitor whether Regulation (EU) 2016/1011 and the delegated acts and technical regulatory standards adopted by the European Commission on its basis are complied with. In particular, it may exercise the powers named in Articles 41 and 42 of Regulation (EU) 2016/1011.
(11) The Federal Institute is empowered to take all measures that are suitable and necessary to monitor whether Regulation (EU) 2017/1131 of the European Parliament and of the Council of 14 June 2017 on money market funds (OJ L 169, 30.6.2017, p. 8), and the delegated acts and technical implementing and regulatory standards adopted by the European Commission on the basis of that Regulation, are complied with. In particular, it may exercise the powers named in Articles 39 and 41 of Regulation (EU) 2017/1131.
(12) The Federal Institute is the competent authority within the meaning of Article 29(1), letters b and c, and (3) and (5), of Regulation (EU) 2017/2402, insofar as that Regulation contains rights and obligations concerning the management companies and investment funds within the meaning of this Act. The Federal Institute is empowered to take all measures that are suitable and necessary to monitor whether Regulation (EU) 2017/2402, and the delegated acts and technical implementing and regulatory standards adopted by the European Commission on its basis, are complied with. In particular, it may exercise the powers named in Articles 30, 32, and 33 of Regulation (EU) 2017/2402.
(12a) The Federal Institute is the competent authority within the meaning of Article 44(2) of Regulation (EU) 2023/2631 of the European Parliament and of the Council of 22 November 2023 on European green bonds and optional disclosures for bonds marketed as environmentally sustainable and for sustainability-linked bonds (OJ L, 2023/2631, 30.11.2023), as amended by Regulation (EU) 2023/2869 (OJ L, 2023/2869, 20.12.2023), for originators falling within the scope of Regulation (EU) 2023/2631.
(13) The Federal Institute is the competent authority within the meaning of Article 14(1) of Regulation (EU) 2019/2088 of the European Parliament and of the Council of 27 November 2019 on sustainability-related disclosures in the financial services sector (OJ L 317, 9.12.2019, p. 1), as amended by Regulation (EU) 2020/852 (OJ L 198, 22.6.2020, p. 13), and of Regulation (EU) 2020/852 of the European Parliament and of the Council of 18 June 2020 on the establishment of a framework to facilitate sustainable investment, and amending Regulation (EU) 2019/2088 (OJ L 198, 22.6.2020, p. 13), insofar as the rights and obligations under that Regulation apply to management companies and investment funds within the meaning of this Act. The Federal Institute is empowered to take measures that are suitable and necessary to monitor whether Regulation (EU) 2019/2088 and Regulation (EU) 2020/852, and the delegated acts and technical implementing and regulatory standards adopted by the European Commission on their basis, are complied with.
(14) For capital management companies, the Federal Institute is the competent authority within the meaning of Article 2, point 18, of Regulation (EU) 2019/1238 of the European Parliament and of the Council of 20 June 2019 on a pan-European Personal Pension Product (PEPP) (OJ L 198, 25.7.2019, p. 1), as amended from time to time. The Federal Institute is empowered to take all measures that are suitable and necessary to monitor whether Regulation (EU) 2019/1238, and the delegated acts and technical implementing and regulatory standards adopted on its basis, are complied with, or to examine whether the conditions for a measure under Article 63 of Regulation (EU) 2019/1238 are satisfied.
(15) For capital management companies falling within the scope of Regulation (EU) 2022/2554 of the European Parliament and of the Council of 14 December 2022 on digital operational resilience for the financial sector and amending Regulations (EC) No 1060/2009, (EU) No 648/2012, (EU) No 600/2014, (EU) No 909/2014, and (EU) 2016/1011 (OJ L 333, 27.12.2022, p. 1), the Federal Institute is the competent authority under Article 46 of Regulation (EU) 2022/2554. In carrying out the tasks under Articles 26 and 27 of Regulation (EU) 2022/2554, the Federal Institute cooperates with the Deutsche Bundesbank. The Deutsche Bundesbank performs the operational tasks under Articles 26 and 27 of Regulation (EU) 2022/2554. Section 7(3) and (4) of the Banking Act applies correspondingly. In the event of infringements of Regulation (EU) 2022/2554, the Federal Institute may, without prejudice to other powers provided for in this Act, make orders in individual cases that are suitable and necessary to ensure compliance with the requirements of Regulation (EU) 2022/2554. In particular, it may order a capital management company
1. to cease the conduct that infringes that Regulation and to refrain from repeating it,
2. to temporarily or permanently discontinue practices or conduct that are contrary to the provisions of the Regulation, and not to repeat them,
3. to ensure that the legal requirements continue to be satisfied, and
4. to take corrective and remedial measures. The Federal Institute may conduct investigations into compliance with the requirements of Regulation (EU) 2022/2554 within the scope of this Act. Without prejudice to other powers provided for in this Act, the Federal Institute may, for this purpose, summon members of the governing bodies of a capital management company for questioning, so that they give oral or written statements on matters or documents connected with the subject matter and purpose of the investigation, and may record the oral statements. Section 6(15) of the Securities Trading Act applies correspondingly to the right to refuse to provide information and the duty to give notice of this right.