Prohibited transactions

(1) The following are prohibited: 1. conducting deposit business where the circle of depositors consists predominantly of the undertaking's own employees (works savings banks), and no other banking business is conducted exceeding the scope of that deposit business; 2. accepting sums of money where the predominant part of the persons providing the funds have a legal claim to be granted loans, or to have items procured to them on credit, from those sums of money (special-purpose savings undertakings); this does not apply to building societies; 3. conducting lending business or deposit business where it is excluded, or made materially more difficult, by agreement or business practice, to dispose of the loan amount or the deposits by cash withdrawal.
(2) CRR credit institutions, and undertakings belonging to an institutional group, a financial holding group, or a mixed financial holding group to which a CRR credit institution belongs, are prohibited from conducting the business named in the second sentence, after the expiry of 12 months from exceeding one of the following thresholds, where 1. for CRR credit institutions and institutional groups, financial holding groups, or mixed financial holding groups to which a CRR credit institution belongs, that prepare accounts under the international accounting standards within the meaning of section 315e of the Commercial Code, the financial assets measured at fair value through other comprehensive income and the financial assets measured at fair value through profit or loss, within the meaning of point 4.1 of International Financial Reporting Standard 9, as amended from time to time, in the Annex to Commission Regulation (EC) No 1126/2008 of 3 November 2008 adopting certain international accounting standards in accordance with Regulation (EC) No 1606/2002 of the European Parliament and of the Council (OJ L 320, 29.11.2008, p. 1; L 347, 24.12.2009, p. 32; L 29, 2.2.2010, p. 34; L 238, 6.9.2013, p. 23), as last amended by Regulation (EU) 2020/551 (OJ L 127, 22.4.2020, p. 13), exceed the value of EUR 100 billion as at the balance sheet date of the preceding financial year, or, where the balance-sheet total of the CRR credit institution or of the institutional group, financial holding group, or mixed financial holding group to which a CRR credit institution belongs has, as at the balance sheet date of each of the last three financial years, reached at least EUR 90 billion, exceed 20 percent of the balance-sheet total of the CRR credit institution, institutional group, financial holding group, or mixed financial holding group to which a CRR credit institution belongs, for the preceding financial year, unless the business is conducted in a financial trading institution within the meaning of section 25f(1), or 2. for the other CRR credit institutions and institutional groups, financial holding groups, or mixed financial holding groups to which a CRR credit institution belongs that are subject to the accounting rules of the Commercial Code, the positions attributable to the trading portfolio under section 340e(3) of the Commercial Code and to the liquidity reserve under section 340e(1), second sentence, of the Commercial Code exceed the value of EUR 100 billion as at the balance sheet date of the preceding financial year, or, where the balance-sheet total of the CRR credit institution or of the institutional group, financial holding group, or mixed financial holding group to which a CRR credit institution belongs has, as at the balance sheet date of each of the last three financial years, reached at least EUR 90 billion, exceed 20 percent of the balance-sheet total of the CRR credit institution, institutional group, financial holding group, or mixed financial holding group to which a CRR credit institution belongs, for the preceding financial year, unless the business is conducted in a financial trading institution within the meaning of section 25f(1). Business prohibited under the first sentence is 1. proprietary business; 2. lending and guarantee business with a) hedge funds within the meaning of section 283(1) of the Capital Investment Code, or funds of hedge funds within the meaning of section 225(1) of the Capital Investment Code, or, where the business is conducted in the course of managing a hedge fund or a fund of hedge funds, with their management companies; b) EU AIFs or foreign AIFs within the meaning of the Capital Investment Code that employ leverage to a considerable extent within the meaning of Article 111 of Commission Delegated Regulation (EU) No 231/2013 of 19 December 2012 supplementing Directive 2011/61/EU of the European Parliament and of the Council with regard to exemptions, general operating conditions, depositaries, leverage, transparency and supervision (OJ L 83, 22.3.2013, p. 1), or, where the business is conducted in the course of managing the EU AIF or foreign AIF, with their EU AIF management companies or foreign AIF management companies; 3. dealing on own account within the meaning of section 1(1a), second sentence, point 4(d), with the exception of market-making activities within the meaning of Article 2(1)(k) of Regulation (EU) No 236/2012 of 14 March 2012 on short selling and certain aspects of credit default swaps (OJ L 86, 24.3.2012, p. 1) (market-making activities); the Federal Institute's power to make case-by-case rules under subsection (4), first sentence, remains unaffected. The following do not fall under the business within the meaning of the second sentence: 1. transactions to hedge transactions with customers other than AIFs or management companies within the meaning of the second sentence, point 2; 2. transactions serving the interest rate, currency, liquidity, and credit risk management of the CRR credit institution, the institutional group, the financial holding group, the mixed financial holding group, or the network; a network within this meaning is formed by institutions belonging to the same institutional protection scheme within the meaning of Article 113, point 7(c), of the Regulation of the European Parliament and of the Council on prudential requirements for credit institutions and investment firms; 3. transactions in the service of the acquisition and disposal of long-term holdings, and transactions not entered into for the purpose of exploiting, in the short term, existing or expected differences between purchase and sale prices, or fluctuations in market rates, prices, values, or interest rates, in order to generate profits in that way.
(3) CRR credit institutions, and undertakings belonging to an institutional group, a financial holding group, or a mixed financial holding group to which a CRR credit institution belongs, that exceed one of the thresholds under section 3(2), first sentence, point 1 or point 2, must 1. within six months of exceeding one of the thresholds, determine, on the basis of a risk analysis, which of their transactions within the meaning of subsection (2), first sentence, are prohibited, and 2. within 12 months of exceeding one of the thresholds, terminate, or transfer to a financial trading institution, the prohibited business already conducted that was identified under the first sentence, point 1. The risk analysis under the first sentence, point 1, must be plausible, comprehensive, and verifiable, and must be documented in writing or electronically. The Federal Institute may extend the period under the first sentence, point 2, in an individual case by up to 12 months; the application must be reasoned. It is prohibited to conduct 1. business identified under the first sentence, point 1, after the expiry of twelve months from exceeding one of the thresholds named in subsection (2), first sentence, or, in the case of the third sentence, after the expiry of the extended period granted, and 2. business that should have been identified under the first sentence, point 1, had the care required in commerce been observed, after the expiry of twelve months from exceeding one of the thresholds named in subsection (2), first sentence.
(4) The Federal Institute may, irrespective of whether the business under subsection (2) exceeds the value under subsection (2), first sentence, prohibit a CRR credit institution, or an undertaking belonging to an institutional group, a financial holding group, or a mixed financial holding group to which a CRR credit institution also belongs, from conducting the following business, and order that the business be discontinued or transferred to a financial trading institution within the meaning of section 25f(1), where there is cause for concern that this business, in particular as measured against the other business volume, the income, or the risk structure of the CRR credit institution or of the undertaking belonging to an institutional group, a financial holding group, or a mixed financial holding group to which a CRR credit institution also belongs, threatens to endanger the solvency of the CRR credit institution or of the undertaking belonging to an institutional group, a financial holding group, or a mixed financial holding group to which a CRR credit institution also belongs: 1. market-making activities; 2. other business within the meaning of subsection (2), second sentence, or business in financial instruments that, by their nature, are comparable in risk intensity to the business under subsection (2), second sentence, or the first sentence, point 1. The Federal Institute must allow the institution a reasonable period when making an order within the meaning of the first sentence.