Appointment of the administrator; rights and duties

(1) The court competent under subsection (11) is responsible for the appointment of the administrator. BaFin proposes at least one suitable natural person to the court for appointment. The court may refuse the appointment of a proposed person only where the person is not suitable to assume the office; BaFin must be heard before a refusal. BaFin must also be heard before an appointment departing from BaFin's proposal.
(2) The competent court may, on BaFin's proposal, appoint up to three administrators. Where several administrators are named, BaFin's proposal must contain a rule on their management and representation powers; subsection (1), fourth sentence applies accordingly. An administrator may be appointed simultaneously for several Pfandbrief banks with limited business activity. The provisions of this Act on the administrator apply accordingly to several administrators.
(2a) The administrator is subject to the supervision of the court competent for the appointment. The court may in particular at any time demand individual information or a report on the status and management of business from the administrator. It may, on the application of BaFin, remove the administrator where good cause exists. The administrator enters, as against BaFin, into the obligations that the Pfandbrief bank must fulfil under this Act and the Banking Act in connection with the administration of the cover assets.
(2b) The administrator receives a certificate of appointment, which the administrator must return to the court on ending the office. The certificate must state the legal ground of the appointment. The court must communicate the appointment and removal of the administrator to the competent registry court and publish it without delay in the Federal Gazette. The appointment and removal of the administrator must be entered ex officio in the commercial register, or, in the case of section 33(5), in the register of cooperatives. Section 15 of the Commercial Code does not apply.
(3) The appointment of the administrator must be entered in the land register for the mortgages entered in the cover register, where, given the nature of the right and the circumstances, it is to be feared that, without the entry, the Pfandbrief creditors would be disadvantaged. The entry must be applied for by the administrator at the land registry. Where mortgages for which the appointment of the administrator has been entered are deleted from the cover register, the administrator must apply to the land registry for deletion of the entry of the administrator's appointment. For rights in ships entered in the cover register, the ship register takes the place of the land register; for rights in ships under construction entered in the cover register, the register of ships under construction; for register liens entered in the cover register under section 1 of the Act on Rights in Aircraft, the register for liens in aircraft; and the respective registry court takes the place of the land registry.
(4) (repealed)
(5) The administrator must regularly monitor the value of the individual cover pools; section 4(4) applies accordingly. BaFin may order special examinations. The costs incurred by BaFin as a result must be borne proportionately from the assets entered in the registers; the ratio of the nominal value of the individual cover pool to the nominal value of all cover pools of the Pfandbrief bank is decisive.
(6) The administrator must apply, in the administrator's management, the care of a prudent and conscientious manager. In the event of a breach of duty, the administrator is liable to the Pfandbrief bank with limited business activity for damages. A breach of duty does not exist where the administrator could reasonably assume, in an entrepreneurial decision, that the administrator was acting on the basis of appropriate information for the benefit of the Pfandbrief creditors.
(6a) The administrator may convene an advisory board with up to five expert members. The advisory board advises the administrator. It adopts its own rules of procedure. The administrator may remove members and appoint new members. Section 17(1) and section 18 of the Insolvency Remuneration Ordinance apply accordingly to remuneration and reimbursement of expenses. Section 31a applies accordingly in other respects.
(7) The administrator and the insolvency administrator must communicate to each other all information that may be relevant to the insolvency proceedings of the Pfandbrief bank or the administration of the cover assets.
(8) The administrator is entitled to make use of the personnel and material resources of the Pfandbrief bank to perform the administrator's tasks. On the administrator's demand, the Pfandbrief bank must undertake all acts and legal transactions necessary for the wind-down of the cover pools, or refrain from acts and legal transactions that threaten to prevent the wind-down of the cover pools. The administrator must reimburse the insolvency estate for the costs actually incurred in doing so.
(9) The administrator may process personal data insofar as this is necessary to perform the administrator's tasks. Section 203 of the Criminal Code does not preclude a transfer of information necessary to perform the administrator's tasks.
(10) BaFin may appoint a special representative under section 45c(1), first sentence of the Banking Act with the exclusive task of preparing the administration of the cover pool as administrator. The special representative may not perform managing or advisory tasks. Section 45c(1), third to fifth sentences, (6) and (7) of the Banking Act apply accordingly. Appointment as special representative is not a ground for refusing the later appointment as administrator by the competent court, unless the special representative has, contrary to the first and second sentences, performed managing or advisory tasks.
(11) For all judicial decisions concerning the appointment and position of the administrator, jurisdiction is determined under sections 2 and 3 of the Insolvency Code. The decisions are made by order. Sections 4, 5(1) and (3) and section 6(1), second sentence and (2) and (3) of the Insolvency Code apply accordingly to the procedure. BaFin, the administrator and the Pfandbrief bank have the right of immediate appeal against decisions of the court; the first half-sentence does not apply in the cases of section 30(6a).