Cooperation with competent bodies abroad; authorisation to issue statutory instruments

(1) The Bundesanstalt is responsible for cooperation with the bodies of the European Union, of the other Member States of the European Union, and of the other states party to the Agreement on the European Economic Area, that are competent for the supervision of conduct and organisational obligations of undertakings providing investment services, of financial instruments, and of markets on which financial instruments or commodities are traded. In the context of its cooperation, the Bundesanstalt may, for the purpose of monitoring compliance with the prohibitions and requirements of this Act and of Regulation (EU) No 600/2014, and with the prohibitions and requirements of the states referred to in the first sentence that correspond to those of this Act, of the Stock Exchange Act, or of the Regulations referred to, make use of all the powers available to it under this Act and Regulation (EU) No 600/2014, insofar as this is suitable and necessary to comply with requests from the bodies referred to in the first sentence. It may, on a request from the bodies referred to in the first sentence, order the prohibition or suspension of trading under section 6(2), fourth sentence, on a domestic market only where the interests of investors or the orderly conduct of trading on the market concerned are not significantly endangered. Where cooperation under the first sentence concerns domestic trading venues on which financial instruments or commodities are traded, the Bundesanstalt and the authority responsible for the domestic trading venue support one another. Where the Bundesanstalt requests the authority responsible for the domestic trading venue to pass on information necessary for the performance of its tasks under the first sentence, it transmits to the requested authority the information necessary to deal with the request for information. The requested authority transmits to the Bundesanstalt the information necessary for the performance of the tasks under the first sentence. Section 10(1), third to fifth sentences of the Stock Exchange Act applies correspondingly. The Bundesanstalt deletes personal data as soon as the data are no longer necessary for the performance of its tasks under the first sentence. The requested authority deletes personal data transmitted by the Bundesanstalt no later than after the information has been provided. The provisions of the Stock Exchange Act on cooperation between the trading surveillance offices and corresponding bodies or exchange managements of other states remain unaffected by this.
(2) On a request from the competent bodies referred to in subsection (1), first sentence, the Bundesanstalt carries out investigations, in accordance with the implementing regulation adopted on the basis of Article 80(4) and Article 81(4) of Directive 2014/65/EU, and transmits without delay all information, insofar as necessary for the supervision of regulated markets or other markets for financial instruments, of credit institutions, financial services institutions, securities institutions, management companies, externally managed investment companies, EU management companies, foreign AIF management companies, financial undertakings or insurance undertakings, or of related administrative or court proceedings. When transmitting information, the Bundesanstalt must inform the recipient that, without prejudice to its obligations in the context of criminal proceedings, it may process the transmitted information, including personal data, only to perform the monitoring tasks under the first sentence and for related administrative and court proceedings.
(3) The Bundesanstalt takes appropriate measures for effective cooperation, in particular as against those Member States in which the transactions of a domestic trading venue are of material significance for the functioning of the financial markets and investor protection under Article 90 of Delegated Regulation (EU) 2017/565, or whose trading venues are of such significance domestically.
(4) The Bundesanstalt may, on request, permit employees of the competent bodies of other states to participate in investigations carried out by the Bundesanstalt. After prior notice to the Bundesanstalt, the competent bodies within the meaning of subsection (1), first sentence, are authorised, themselves or through their representatives, to examine at a branch within the meaning of section 53b(1), first sentence of the Banking Act the information necessary for monitoring compliance with the reporting obligations under Article 26 of Regulation (EU) No 600/2014, the conduct, organisational and transparency obligations under sections 63 to 83, or corresponding foreign provisions, by that branch. Employees of the European Securities and Markets Authority may take part in investigations under the first sentence.
(5) The Bundesanstalt may cooperate with the bodies referred to in subsection (1), first sentence, in relation to facilitating the collection of fines.
(6) The Bundesanstalt may refuse an investigation, the transmission of information, or the participation of employees of competent foreign bodies within the meaning of subsection (1), first sentence, where court proceedings have already been initiated against the persons concerned on the basis of the same facts, or a final decision has already been made. Where the Bundesanstalt does not comply with a request, or makes use of its right under the first sentence, it notifies its decision, including its reasons, to the requesting body and to the European Securities and Markets Authority without delay, and transmits to them precise information on the court proceedings or the final decision.
(7) The Bundesanstalt requests the competent bodies referred to in subsection (1), in accordance with the implementing regulation adopted on the basis of Article 80(4) and Article 81(4) of Directive 2014/65/EU, to carry out investigations and to transmit information that is suitable and necessary for the performance of its tasks under the provisions of this Act. It may request the competent bodies to permit employees of the Bundesanstalt to participate in the investigations. With the agreement of the competent bodies, the Bundesanstalt may carry out investigations abroad and commission auditors or experts for that purpose; where the Bundesanstalt investigates a branch of a domestic investment services undertaking in a host Member State, prior notice to the competent body abroad suffices. Where the Bundesanstalt makes orders against undertakings having their seat abroad that are members of domestic regulated markets, it informs the bodies competent for the supervision of those undertakings. Where information is communicated to the Bundesanstalt by a body of another state, it may process that information, without prejudice to its obligations in criminal matters concerning the suspicion of a criminal offence under the criminal provisions of this Act, only to perform monitoring tasks under subsection (2), first sentence, and for related administrative and court proceedings. The Bundesanstalt may, having regard to the purpose specified by the transmitting body, communicate that information to the bodies referred to in section 17(2), insofar as necessary for the performance of their tasks. Any other processing of the information is permissible only with the consent of the transmitting body. Except for information relating to insider dealing or market manipulation, that consent may, in justified exceptional cases, be dispensed with, provided this is communicated to the transmitting body without delay, stating the reasons. Where a request by the Bundesanstalt under the first to third sentences is not complied with within a reasonable time, or is refused without sufficient grounds, the Bundesanstalt may request assistance from the European Securities and Markets Authority in accordance with Article 19 of Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 331, 15.12.2010, p. 84).
(8) Where the Bundesanstalt has sufficient indications of a breach of prohibitions or requirements under the provisions of this Act, or under corresponding foreign provisions of the states referred to in subsection (1), first sentence, it communicates those indications to the European Securities and Markets Authority and to the competent bodies, referred to in subsection (1), first sentence, of the state in whose territory the unlawful act is taking place or has taken place, or in whose territory the financial instruments concerned are traded on a regulated market, or that is competent under the law of the European Union for prosecuting the breach. Where the measures thereupon taken by the competent foreign bodies are insufficient, or the provisions of this Act or the corresponding foreign provisions continue to be breached, the Bundesanstalt, after prior notice to the competent bodies, takes all measures necessary for the protection of investors, and informs the European Commission and the European Securities and Markets Authority thereof. Where the Bundesanstalt receives a corresponding communication from competent foreign bodies, it informs them, and the European Securities and Markets Authority, of the results of investigations subsequently initiated. The Bundesanstalt further informs 1. the competent bodies referred to in the first sentence and the European Securities and Markets Authority of orders suspending, prohibiting or discontinuing trading under section 6(2), fourth sentence, of this Act, and under section 3(5), third sentence, no. 1 and section 25(1) of the Stock Exchange Act, 2. the competent bodies referred to in the first sentence, within one month of receiving a notification under section 19(10) of the Stock Exchange Act, of the intention of the management of an exchange to grant trading participants from the states concerned direct access to its trading system, 3. the competent bodies referred to in the first sentence and the European Securities and Markets Authority of orders under section 9(1) to reduce position sizes or open exposures, and 4. the competent bodies referred to in the first sentence and the European Securities and Markets Authority of orders under section 9(2) to restrict positions in commodity derivatives. The notification under the fourth sentence, numbers 3 and 4, must be given at least 24 hours before the order is announced; where this is exceptionally not possible, the notification must be given no later than before the announcement. The notification under the fourth sentence, numbers 3 and 4, includes particulars of requests for information and production under section 6(3), second sentence, no. 1, including their reasons and addressee, and of the scope of orders under section 9(2), including the persons addressed, the financial instruments concerned, position limits and exemptions granted under section 56(3). Where a measure referred to in the fourth sentence, numbers 3 and 4, concerns wholesale energy products, the Bundesanstalt also informs the Agency for the Cooperation of Energy Regulators established by Regulation (EC) No 713/2009.
(9) The provisions on international legal assistance in criminal matters remain unaffected.
(10) The Bundesanstalt may cooperate, and conclude agreements on the exchange of information, with the competent bodies of states other than those referred to in subsection (1), correspondingly to subsections (1) to (9). Subsection (7), fifth and sixth sentences apply with the proviso that information transmitted by those bodies may be processed only having regard to a purpose specified by the transmitting body, and may be communicated to the Deutsche Bundesbank or the Federal Cartel Office only with the express consent of the transmitting body, insofar as necessary for the performance of their tasks. Subsection (7), eighth sentence does not apply. The transmission of personal data must be consistent with Chapter V of Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L 119, 4.5.2016, p. 1; L 314, 22.11.2016, p. 72; L 127, 23.5.2018, p. 2), as amended from time to time, and with the other general data protection provisions. The Bundesanstalt informs the European Securities and Markets Authority of the conclusion of agreements under the first sentence.
(11) For purposes of cooperation in connection with Regulation (EU) No 596/2014 and Regulation (EU) 2020/1503, the Bundesanstalt has the powers under this Act to comply with the relevant requests of the competent authorities under Regulation (EU) No 596/2014 and Regulation (EU) 2020/1503, and of the authorities competent for monitoring corresponding foreign provisions of other states party to the Agreement on the European Economic Area or of third countries.
(12) The Federal Ministry of Finance may, by statutory instrument not requiring the consent of the Bundesrat, adopt further provisions, for the purposes referred to in subsections (2), (3) and (7), on the transmission of information to foreign bodies, the conduct of investigations on the request of foreign bodies, and requests by the Bundesanstalt to foreign bodies. The Federal Ministry of Finance may transfer this authorisation, by statutory instrument, to the Federal Financial Supervisory Authority.