Special commissioner

(1) The supervisory authority may appoint a special commissioner, entrust that person with performing tasks at an undertaking, and confer on that person the powers necessary for this. The special commissioner must be independent, reliable, and suitable for the proper performance of the tasks conferred on him or her, in the interest of a sustainable business policy of the undertaking and of safeguarding financial market stability. Insofar as the special commissioner assumes the tasks of a manager or a governing body, he or she must offer a guarantee of the professional suitability required. Insofar as the special commissioner is not conferred the powers of a manager or a governing body, a legal person may also be appointed. In selecting an auditing firm as special commissioner, the supervisory authority may assume, without examination, that the auditing firm deploys only staff who are reliable and suitable for the proper performance of the tasks conferred.
(1a) The supervisory authority may, in particular, confer on the special commissioner: 1. performing the tasks and powers of the governing bodies of the undertaking, wholly or in part, where the conditions of section 303(2) are satisfied; 2. performing the tasks and powers of one or more managers, where the undertaking no longer has the required number of managers, in particular because the supervisory authority has required the removal of a manager or has prohibited that person from exercising his or her activity; 3. performing the tasks and powers of the governing bodies of the undertaking, wholly or in part, where supervision of the undertaking is impaired on the basis of facts under section 11(2); 4. taking suitable measures to establish and secure a proper business organisation, including appropriate risk management, where the undertaking has persistently breached provisions of this Act, the Insurance Contract Act, the Money Laundering Act, Regulation (EU) No 648/2012, Article 4(1) to (5) or Article 15 of Regulation (EU) 2015/2365, Article 16(1) to (4), Article 23(3), first sentence, (5), (6), or (10), Article 28(2), or Article 29 of Regulation (EU) 2016/1011, Articles 6, 7, 9, 18 to 26, 26b to 26e, or Article 27(1) or (4) of Regulation (EU) 2017/2402, the provisions referred to in section 120a(1) and (2) of the Securities Trading Act, the statutory instruments issued to implement this Act, the acts issued to implement Regulations (EU) No 648/2012, (EU) 2015/2365, (EU) 2016/1011, (EU) 2017/2402, (EU) 2019/1238, or Directive 2009/138/EC, or orders of the supervisory authority; 5. monitoring that orders of the supervisory authority against the undertaking are complied with; 6. examining claims for damages against governing body members or former governing body members, where there are indications of loss to the undertaking through a breach of duty by governing body members.
(1b) Insofar as the special commissioner steps into the tasks and powers of a governing body or governing body member of the undertaking in their entirety, the tasks and powers of the governing body or governing body member concerned are suspended. The special commissioner cannot simultaneously perform the function of one or more managers and of one or more members of an administrative or supervisory body. Where the special commissioner is granted only part of the powers of a governing body or governing body member for performing a task, this has no effect on the powers of the appointed governing body or governing body member of the undertaking. The comprehensive transfer of all tasks and powers of one or more managers to the special commissioner may take place only in the cases of subsection (1a), points 1 to 3. His or her power of representation is then determined by the power of representation of the manager or managers in whose place the special commissioner is appointed. As long as the supervisory authority has conferred on a special commissioner the function of one or more managers, the persons or governing bodies otherwise called upon to do so under other legal provisions may exercise their right to appoint a manager only with the consent of the supervisory authority.
(1c) Where the supervisory authority transfers the performance of the tasks and powers of a manager under subsection (1a), point 1, 2, or 3, to a special commissioner, the transfer, the power of representation, and the revocation of the transfer are entered in the commercial register ex officio.
(1d) The governing body of the undertaking responsible for excluding shareholders from management and representation, or for removing persons authorised to manage or represent, may, where good cause exists, apply to have the transfer of the function of a manager to the special commissioner revoked.
(2) Within the framework of his or her tasks, the special commissioner is entitled to require from the members of the governing bodies and the employees of the undertaking information and the submission of documents, to participate in an advisory capacity in all sessions and meetings of the governing bodies and other bodies of the undertaking, to enter the business premises of the undertaking, to inspect its business papers and books, and to make inquiries. The governing bodies and governing body members must support the special commissioner in performing his or her tasks. He or she is obliged to provide the supervisory authority with information on all findings made in the course of his or her activity.
(3) The undertaking under supervision bears the costs arising from the appointment of the special commissioner, including the appropriate expenses to be granted to him or her and the remuneration. The supervisory authority determines the amount of the remuneration. The supervisory authority advances the expenses and the remuneration on the application of the special commissioner.
(4) Special commissioners are liable for intent and negligence in respect of acts within the framework of subsection (1a), points 1 to 4 and 6, provided they themselves take measures to avert a danger. Where the special commissioner was appointed under subsection (1a), point 5, exclusively for monitoring orders of the supervisory authority against the undertaking, he or she is liable only for intent. In the case of negligent conduct, the special commissioner's duty to compensate is limited to EUR 1 million for an activity at one undertaking. Where the undertaking is a stock corporation whose shares are admitted to trading on a regulated market, the duty to compensate under the third sentence is limited to EUR 50 million. The limitations under the third and fourth sentences also apply where the special commissioner has been conferred the powers of several governing bodies, or has committed several acts giving rise to a duty to compensate.