Special representative

(1) The supervisory authority may appoint a special representative, entrust them with performing duties at an institution, and confer on them the powers required for this. The special representative must be independent, reliable, and suitable for the proper performance of the duties conferred on them, in the interest of a sustainable business policy of the institution and the preservation of financial market stability; insofar as the special representative assumes the duties of a manager or of a governing body, they must offer a guarantee of the professional qualification required. Insofar as the special representative is not conferred the exercise of the powers of a manager or of a governing body, a legal person may also be appointed. In selecting an auditing firm as special representative, the supervisory authority may, without examination, assume that the auditing firm deploys only personnel who are reliable and suitable for the proper performance of the duties conferred. In the course of their duties, the special representative is entitled to require information and the submission of documents from the members of the institution's governing bodies and its employees, to attend all meetings and assemblies of the institution's governing bodies and other committees in an advisory capacity, to enter the institution's business premises, to inspect its business papers and books, and to make inquiries. The governing bodies and their members must support the special representative in performing their duties. They are obliged to provide the supervisory authority with information on all findings made in the course of their activity.
(2) The supervisory authority may, in particular, confer on the special representative: 1. the performance of the duties and powers of one or more managers, where facts exist showing that the institution's manager or managers are not reliable or do not have the professional qualification required to manage the institution; 2. the performance of the duties and powers of one or more managers, where the institution no longer has the required number of managers, in particular because the supervisory authority has required the removal of a manager or has prohibited them from exercising their activity; 3. the performance, in whole or in part, of the duties and powers of governing bodies of the institution, where the conditions under section 36(3), first sentence, points 1 to 10, are met; 4. the performance, in whole or in part, of the duties and powers of governing bodies of the institution, where supervision of the institution is impaired on the basis of facts within the meaning of section 33(2); 5. taking suitable measures to establish and safeguard a proper business organisation, including appropriate risk management, where the institution has persistently breached the provisions of this Act, the Building Societies Act, the Safe Custody Act, the Anti-Money Laundering Act, the Capital Investment Code, the Pfandbrief Act, the Payment Services Supervision Act, or the Securities Trading Act, the regulations issued to implement these Acts, or orders of the supervisory authority; 6. monitoring compliance with orders of the supervisory authority against the institution; 7. drawing up a restructuring plan for the institution, where the conditions under section 45(1) are met, monitoring the implementation of a restructuring plan, and exercising the powers under section 45(3), third and fourth sentences; 7a. drawing up a plan under section 10(4), sixth sentence, for the institution, where the conditions under section 10(4), first sentence, are met and the institution has not submitted a suitable plan within a period set by the supervisory authority, and ensuring the implementation of the plan; 8. monitoring the institution's measures to avert a danger within the meaning of section 35(2), point 4, or section 46(1), first sentence, themselves taking measures to avert a danger, or monitoring compliance with measures of the supervisory authority under section 46; 9. preparing a resolution order within the meaning of section 77 of the Recovery and Resolution Act; 10. examining claims for damages against members or former members of governing bodies, where there are indications that the institution has suffered loss through a breach of duty by members of governing bodies.
(3) Insofar as the special representative fully assumes the duties and powers of a governing body or a member of a governing body of the institution, the duties and powers of the governing body or member concerned are suspended. The special representative may not simultaneously perform the function of one or more managers and of one or more members of an administrative or supervisory body. Where the special representative is granted only part of the powers of a governing body or a member of a governing body for the performance of a duty, this has no effect on the powers of the appointed governing body or member of the institution. The comprehensive conferral of all duties and powers of one or more managers on the special representative may take place only in the cases under subsection (2), points 1, 2, and 4. Their power of representation is governed by the power of representation of the manager or managers in whose place the special representative is appointed. For as long as the Federal Institute has conferred on a special representative the function of a manager or of an administrative or supervisory body, the persons or governing bodies otherwise called upon under other legal provisions may exercise their right to appoint a manager or a member of the administrative or supervisory body only with the Federal Institute's consent.
(4) Where the Federal Institute confers the performance of the duties and powers of a manager under subsection (2), point 1 or 2, on a special representative, the conferral, the power of representation, and the revocation of the conferral are entered in the commercial register ex officio.
(5) The governing body of the institution responsible for excluding partners from management and representation, or for removing persons authorised to manage or represent, may, where good cause exists, apply to have the conferral of the function of a manager on the special representative revoked.
(6) The costs arising from the appointment of the special representative, including the appropriate expenses and remuneration to be granted to them, are borne by the institution. The Federal Institute determines the amount of the remuneration. The Federal Institute advances the expenses and the remuneration on the special representative's application.
(7) Special representatives are liable, for acts within the scope of subsection (2), points 1 to 5, 7, 7a, 9, 10, and point 8, insofar as they themselves take measures to avert a danger, for intent and negligence. Where the special representative was appointed under subsection (2), point 6 or point 8, exclusively for monitoring orders of the Federal Institute against the institution, for monitoring the institution's measures to avert a danger within the meaning of section 35(2), point 4, or section 46(1), first sentence, or for monitoring compliance with measures of the Federal Institute under section 46, they are liable only for intent. This also applies insofar as the special representative approves exceptions to the prohibition on disposal and payment under section 46(2), fifth sentence, within an amount limit set by the Federal Institute. In the case of negligent conduct, the special representative's liability to compensate is limited to EUR 1 million. Where it concerns a stock corporation whose shares are admitted to trading on the regulated market, the liability to compensate is limited to EUR 50 million.
(8) Subsections (1) to (7) apply correspondingly to financial holding companies or mixed financial holding companies that are deemed a superordinate undertaking under section 10a, and with respect to their managers.