Marketing process; authorisation to issue statutory instruments

(1) Where the resolution authority intends, in a resolution order, to make use of the business sale tool, it initiates a marketing process in good time before the resolution order is issued. The marketing process relates to the objects of transfer that the resolution authority intends to transfer. The resolution authority may market the objects of transfer individually, or market several objects of transfer together.
(2) The marketing process under subsection (1) must observe the following principles: 1. having regard to the circumstances of the individual case and to the preservation of financial stability, it must be as open and transparent as possible; 2. it must not be discriminatory, so that no undue favouring or disadvantaging of potential acquirers occurs, and no potential acquirer is granted an unfair advantage; 3. conflicts of interest are to be avoided, insofar as possible; section 21 of the Administrative Procedure Act applies correspondingly; 4. it must have regard to the need for the resolution action to be carried out rapidly; 5. the highest possible consideration for the objects of transfer concerned is to be sought. Subject to the first sentence, point 2, the resolution authority may approach specific potential acquirers directly. Where the marketing intention constitutes inside information, publication under Article 17(1) of Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (market abuse regulation) and repealing Directive 2003/6/EC of the European Parliament and of the Council and Commission Directives 2003/124/EC, 2003/125/EC and 2004/72/EC (OJ L 173, 12.6.2014, p. 1), as amended, may be delayed in accordance with Article 17(4) or (5) of Regulation (EU) No 596/2014.
(3) By way of derogation from subsection (1), the resolution authority may apply the business sale tool without carrying out a marketing process, where it assesses that complying with the requirements for the marketing process would be likely to undermine the effectiveness of the business sale tool, and thereby the achievement of one or more resolution objectives.
(4) Where the positive or negative purchase price achieved in a marketing process departs from the value determined under section 69, the parties to the procedure or third parties may derive no rights from that departure. In particular, the resolution authority's decision to select the business sale tool does not, on that ground alone, become a misexercise of discretion.
(5) The Federal Ministry of Finance is authorised to issue, by statutory instrument not requiring the consent of the Bundesrat, more detailed provisions on the circumstances in which the resolution authority may, under subsection (3), dispense with carrying out a marketing process. The Federal Ministry of Finance may transfer this authorisation, by statutory instrument, to the resolution authority.