Measures in the event of danger

(1) Where there is a danger to the fulfilment of an institution's obligations towards its creditors, in particular to the safety of the assets entrusted to it, or where there is a well-founded suspicion that effective supervision of the institution is not possible (section 33(2)), the supervisory authority may take temporary measures to avert this danger. It may, in particular, 1. issue instructions for the management of the institution, 2. prohibit the acceptance of deposits or funds or securities from customers and the granting of loans (section 19(1)), 3. prohibit or restrict owners and managers from exercising their activity, 4. temporarily issue a prohibition on disposal and payment against the institution, 5. order the closure of the institution to dealings with customers, and 6. prohibit the acceptance of payments not intended to satisfy liabilities towards the institution, unless the competent compensation scheme or other protection scheme ensures the satisfaction of the persons entitled in full. The supervisory authority may, under the conditions of the first sentence, prohibit or restrict payments to undertakings belonging to the group, where these transactions are disadvantageous to the institution. It may also determine that payments are permissible only under particular conditions. The Federal Institute informs, without delay, the supervisory authorities concerned in the member states of the European Union, as well as the European Central Bank and the Deutsche Bundesbank, of the measures it intends under the third and fourth sentences. Resolutions on profit distribution are void, insofar as they conflict with an order under the first and second sentences. At institutions operated in a legal form other than that of a sole trader, managers who have been prohibited from exercising their activity are excluded, for the duration of the prohibition, from the management and representation of the institution. The general provisions apply to claims arising from the employment contract or other provisions concerning the manager's activity. Rights that enable a manager, as a partner or in another way, to participate in decisions on management measures at the institution may not be exercised for the duration of the prohibition.
(1a) Without prejudice to section 30(6), first sentence, of the Pfandbrief Act, a measure under subsection (1), second sentence, point 4, does not extend to: 1. payments to fulfil due payment obligations under Pfandbriefe in circulation within the meaning of section 1(3) of the Pfandbrief Act, insofar as payments received on the assets used as cover, or consideration for the realisation of such assets under point 3, are used for this, 2. payments or dispositions concerning assets used as cover that serve to fulfil payment or repayment obligations arising from a derivative transaction used as cover within the meaning of section 4b(1) of the Pfandbrief Act, insofar as payments received on the assets used as cover, consideration for the realisation of such assets, or collateral received and entered in the cover register are used for this, and 3. the disposal of, or other disposition concerning, the assets used as cover, provided that the consideration for the disposal or other disposition is used to fulfil payment or repayment obligations named under point 1 or 2. The deletion of assets used as cover from the cover register is treated the same as their disposal.
(2) The competent compensation scheme or other protection scheme may make its declaration of commitment within the meaning of subsection (1), second sentence, point 6, conditional on incoming payments, insofar as they are not intended to satisfy liabilities towards the institution under subsection (1), second sentence, point 6, being held and managed separately from the institution's assets existing at the time the prohibition on disposal and payment under subsection (1), second sentence, point 4, is issued, for the benefit of the scheme. After the prohibition on disposal and payment under subsection (1), second sentence, point 4, is issued, the institution may wind up the business current at the time it is issued and enter into new business, insofar as this is necessary for the winding-up, where and insofar as the competent compensation scheme or other protection scheme makes available the funds necessary to carry this out, or undertakes to reimburse the institution for reductions in its assets arising overall from this business, insofar as this is necessary for the full satisfaction of all creditors. The Federal Institute may also permit exceptions to the prohibition on disposal and payment under subsection (1), second sentence, point 4, insofar as this is appropriate for carrying out the institution's business or its administration. In doing so, it may, in particular, order the reimbursement of payments that have been accepted, or that have been received by the institution, contrary to an order under subsection (1), second sentence, point 6. It may set an amount limit up to which a special representative may permit exceptions to the prohibition on disposal and payment. For as long as measures under subsection (1), second sentence, points 4 to 6, continue, compulsory enforcement, attachment, and interim injunctions against the institution's assets are not permissible. The provisions of the Insolvency Code on the protection of payment systems and securities settlement systems, including interoperable systems, and of central banks' security interests in rem and of financial collateral, apply correspondingly where a measure under subsection (1), second sentence, points 4 to 6, is ordered. The ordering of protective measures under section 21 of the Insolvency Code does not affect the validity of the reimbursement of a payment that has been accepted or received via a system or an intermediary body, or received by the institution, contrary to an order under subsection (1), second sentence, point 6, and whose reimbursement the Federal Institute has ordered under the fourth sentence.
(3) (repealed)