Power of disposal, fiduciary status, security provisions

(1) The capital management company is entitled, in its own name, to dispose of the assets belonging to a collective investment fund in accordance with this Act and the investment conditions, and to exercise all rights arising from them.
(2) The collective investment fund is not liable for the liabilities of the capital management company; this also applies to liabilities of the capital management company arising from legal transactions that it carries out for the joint account of the investors. The capital management company is not entitled to incur liabilities in the name of the investors. Agreements deviating from the provisions of this subsection are invalid.
(3) The capital management company may satisfy its claims to remuneration and reimbursement of expenses arising from transactions carried out for the joint account of the investors only out of the collective investment fund; the investors are not personally liable to it.
(3a) The capital management company may refuse to fulfil liabilities arising from legal transactions carried out for the joint account of the investors of a collective investment fund for as long as, and to the extent that, it cannot actually satisfy itself out of the collective investment fund under subsection (3). The defence under the first sentence has, in particular,
1. no effect on the occurrence of default,
2. no suspensive effect, and
3. no effect on the enforceability of collateral existing for liabilities arising from transactions carried out for the joint account of the investors.
(4) Assets belonging to a collective investment fund may not be pledged or otherwise encumbered, transferred by way of security, or assigned by way of security; a disposition made in breach of this provision is invalid as against investors. The first sentence does not apply where, for the account of a collective investment fund, loans are raised under sections 199, 221(6), sections 254, 274, 283(1), first sentence, point 1, section 284(4), option rights are granted to a third party, or securities repurchase transactions under section 203, or financial futures contracts, currency futures contracts, swaps, or similar transactions under section 197 are concluded, or where, for the account of a collective investment fund under section 283(1), first sentence, point 2, short sales are carried out, or securities loans are granted to a collective investment fund within the meaning of section 283(1); with regard to the reuse of financial instruments received as collateral, reference is made to Article 15 of Regulation (EU) 2015/2365.
(5) Claims against the capital management company and claims belonging to a collective investment fund may not be set off against each other. This does not apply to master agreements for transactions under section 197(1), first sentence, under sections 200 and 203, or with prime brokers, for which it is agreed that the claims and receivables arising under these transactions or the master agreement for the account of the collective investment fund are set off automatically or by declaration of a party, or, in the event of termination of the master agreement for non-performance or insolvency, are replaced by a single net settlement claim.
(6) Where partly paid-up shares are included in a collective investment fund, the capital management company is liable for the payment of the outstanding contributions only with its own assets.
(7) Where units have entered circulation without the unit value having accrued to the collective investment fund, the capital management company must contribute the missing amount to the collective investment fund out of its own assets.