Recording and retention obligation

(1) An investment services undertaking must, without prejudice to the record-keeping obligations under Articles 74 and 75 of Delegated Regulation (EU) 2017/565, keep records of the investment services and ancillary investment services it provides, and of the transactions it carries out, that enable the Bundesanstalt to review and enforce compliance with the obligations set out in this Part, in Regulation (EU) No 600/2014 and in Regulation (EU) No 596/2014.
(2) The investment services undertaking must keep records of agreements with clients that set out the rights and obligations of the contracting parties and the other terms on which the investment services undertaking provides investment services or ancillary investment services for the client. These include in particular records of the client communications under section 63(12), sixth sentence, and the agreements under section 64(3), seventh sentence, and (4), sixth sentence. Rights and obligations set out or agreed in other documents or legal texts may be incorporated into the agreements by reference. Further particulars on the record-keeping obligation under the first sentence are laid down in Article 58 of Delegated Regulation (EU) 2017/565.
(2a) (repealed)
(2b) (repealed)
(3) As regards transactions carried out when dealing on own account, and the provision of services relating to the reception, transmission and execution of client orders, the investment services undertaking must, for evidentiary purposes, record the contents of telephone conversations and electronic communications. The recording must in particular cover those parts of telephone conversations and electronic communications in which the risks, return prospects or structuring of financial instruments or investment services are discussed. For this purpose the investment services undertaking may process personal data. This applies also where the telephone conversation or electronic communication does not lead to the conclusion of such a transaction or the provision of such a service.
(4) The investment services undertaking must take all reasonable steps to record relevant telephone conversations and electronic communications made using, or sent from or received on, devices that the investment services undertaking provides to its staff or agents, or the use of which the investment services undertaking approves or permits. Telephone conversations and electronic communications required to be recorded under subsection (3), first sentence, may be conducted on staff members' private devices or private electronic communications only where the investment services undertaking can record them with the staff member's consent, or copy them to its own data storage after the conversation has ended.
(5) The investment services undertaking must inform new and existing clients, and its staff and agents, in advance and in an appropriate manner, of the recording of telephone conversations under subsection (3), first sentence. Where an investment services undertaking has not informed its clients in advance of the recording of telephone conversations or electronic communications, or where the client has objected to a recording, the investment services undertaking may not provide investment services for the client by telephone or by means of electronic communication where they relate to the reception, transmission and execution of client orders. Further particulars are governed by Article 76 of Delegated Regulation (EU) 2017/565.
(6) Where the client gives the investment services undertaking its order in the course of a face-to-face conversation, the investment services undertaking must document the giving of the order without delay by means of a durable medium. For this purpose, written minutes or notes of the content of the face-to-face conversation may also be made. Where the client gives its order in some other way, such communications must be made on a durable medium. Further particulars are governed by Article 76(9) of Delegated Regulation (EU) 2017/565.
(7) The client may, at any time until deletion or destruction under subsection (8), require the investment services undertaking to make available to it the records under subsection (3), first sentence, and the documentation under subsection (6), first sentence, or a copy thereof.
(8) The records under subsections (3) and (6) must be retained for five years, insofar as they are necessary for the purposes stated there. They must be deleted or destroyed on expiry of the period under the first sentence. The deletion or destruction must be documented. Where the Bundesanstalt becomes aware, before expiry of the period under the first sentence, of circumstances requiring the retention of a record beyond the maximum period under the first sentence, in particular for evidentiary purposes, the Bundesanstalt may extend the maximum retention period under the first sentence by two years.
(9) The records prepared under subsections (3) and (6) must be secured against subsequent falsification and unauthorised use, and may not be used for other purposes, in particular not for the monitoring of staff by the investment services undertaking. They may be evaluated only under specific conditions, in particular for fulfilling a client order, at the request of the Bundesanstalt or another supervisory or law-enforcement authority, and only by one or more staff members specifically designated for this purpose by the investment services undertaking. An evaluation of the records may, in addition, be carried out only by an auditor engaged under section 89(1), by the Bundesanstalt or its agents, or by another supervisory or law-enforcement authority or its agents, within their respective competence.
(10) The Federal Ministry of Finance may, by statutory instrument not requiring the consent of the Bundesrat, adopt further provisions on the record-keeping obligations and on the suitability of data media under subsections (1) to (7). The Federal Ministry of Finance may transfer this authorisation, by statutory instrument, to the Bundesanstalt.
(11) The Bundesanstalt publishes on its website a list of the minimum records that investment services undertakings must keep under this Act in conjunction with a statutory instrument under subsection (10).
(12) Subsection (2) does not apply to real-estate consumer credit agreements under section 491(3) of the Civil Code that are linked to the precondition that the consumer is provided with an investment service in relation to covered bonds issued to secure the financing of the credit and based on the same terms as the real-estate consumer credit agreement, and where this makes it possible for the loan to be paid out, refinanced or redeemed.