Tasks and general powers of the Bundesanstalt

(1) The Bundesanstalt supervises securities institutions, investment holding companies and mixed financial holding companies under the provisions of this Act, the statutory instruments issued under it, Regulation (EU) 2019/2033, and the legal acts issued on the basis of Regulation (EU) 2019/2033 and Directive (EU) 2019/2034, as well as Regulation (EU) 2022/2554 of the European Parliament and of the Council of 14 December 2022 on digital operational resilience for the financial sector and amending Regulations (EC) No 1060/2009, (EU) No 648/2012, (EU) No 600/2014, (EU) No 909/2014 and (EU) 2016/1011 (OJ L 333, 27.12.2022, p. 1), as amended from time to time, and the legal acts issued on the basis of Regulation (EU) 2022/2554. The Bundesanstalt is the competent authority under Article 4(1), first sentence of Directive (EU) 2019/2034 and under Article 46 of Regulation (EU) 2022/2554. The Bundesanstalt is to counteract undesirable developments in the securities business that may jeopardise the safety of the assets entrusted to it, may impair the proper conduct of the investment services, ancillary investment services or ancillary business provided, or may bring about serious disadvantages for the economy as a whole. The Bundesanstalt and the Deutsche Bundesbank cooperate in carrying out the tasks under Articles 26 and 27 of Regulation (EU) 2022/2554. The Deutsche Bundesbank carries out the operational tasks under Articles 26 and 27 of Regulation (EU) 2022/2554. Section 7(3) and (4) of the Banking Act applies correspondingly.
(2) The Bundesanstalt may, within the scope of the tasks assigned to it by law, issue orders to securities institutions and other affected natural and legal persons, in particular also to managers or members of the management or supervisory body, that are suitable and necessary to prevent or eliminate breaches of the provisions referred to in subsection (1), first sentence, or of other supervisory provisions, or the undesirable developments referred to in subsection (1), third sentence. In the event of breaches of the provisions referred to in subsection (1), first sentence, and of enforceable orders of the Bundesanstalt, it may require that the acts or conduct giving rise to the breach be permanently discontinued. The power to issue orders under the first or second sentence also exists as against investment holding companies or mixed financial holding companies, and as against the persons who actually conduct the business of those companies.
(3) In the event of a breach of the provisions referred to in subsection (1), first sentence, or of an enforceable order of the Bundesanstalt relating to those provisions or issued to remedy undesirable developments, the Bundesanstalt may in particular
1. publish on its website a warning naming the natural or legal person or association of persons responsible for the breach and the nature of the breach;
2. prohibit a manager or member of the management or supervisory body of a securities institution, or any other natural person responsible for a wilful breach or undesirable development, from carrying on a professional activity at undertakings subject to supervision under this Act or the Banking Act, for a period of up to two years. In the case of the first sentence, no. 1, section 84(3) applies correspondingly.
(4) A securities institution, a parent undertaking or an outsourcing undertaking, its managers or members of the management or supervisory body, and its employees, must, on request, provide the Bundesanstalt, the persons and bodies engaged by the Bundesanstalt in performing its tasks, and the Deutsche Bundesbank, with information on all business matters, produce documents, and, where necessary, make and hand over copies; members of a governing body and employees must, on request, also provide information and produce documents after they have left the governing body, the securities institution or the undertaking. The Bundesanstalt may, even without particular cause, carry out examinations at a securities institution, parent undertaking or outsourcing undertaking, and may transfer the conduct of examinations to the Deutsche Bundesbank. The staff of the Bundesanstalt and of the Deutsche Bundesbank, and other persons engaged by the Bundesanstalt or the Deutsche Bundesbank in carrying out examinations, may for this purpose enter and inspect the premises of the securities institution, parent undertaking or outsourcing undertaking during ordinary business and operating hours. To avert imminent dangers to public safety, they are entitled to enter and inspect such premises also outside ordinary business and operating hours, and premises that also serve as a residence; to that extent the fundamental right to the inviolability of the home (Article 13(1) of the Basic Law) is restricted. The persons affected must tolerate measures under the second to fourth sentences. The first to fifth sentences apply correspondingly to a subsidiary undertaking not included in the consolidation, its subsidiary undertakings, and to a mixed undertaking and its subsidiary undertakings.
(5) The obligation under subsection (4) to provide information and produce documents to the Bundesanstalt and the Deutsche Bundesbank also applies to
1. persons and undertakings notifying an intended holding under section 24, or named as holders of significant holdings in the context of a licence application under Article 3 of Commission Delegated Regulation (EU) 2017/1943 of 14 July 2016 supplementing Directive 2014/65/EU of the European Parliament and of the Council with regard to regulatory technical standards on information and requirements for the authorisation of investment firms (OJ L 276, 26.10.2017, p. 4; L 292, 10.11.2017, p. 119);
2. the holders of a significant holding in the securities institution and the undertakings controlled by them;
3. persons and undertakings in respect of whom facts justify the assumption that they are persons or undertakings within the meaning of no. 2; and
4. persons and undertakings connected, within the meaning of section 15 of the Stock Corporation Act, with a person or undertaking within the meaning of nos. 1 to 3. The obligations to provide information and produce documents under the first sentence also apply to employees or members of a governing body of such a person or undertaking. Members of a governing body and employees must, on request, also provide information and produce documents after they have left the governing body or the undertaking. On request of the Bundesanstalt, the person subject to the obligation to produce documents must, at that person's own expense, have the documents to be submitted examined by a public accountant designated by the Bundesanstalt. The Bundesanstalt may take measures under subsection (4), second and third sentences against the persons and undertakings named in the first sentence where there are indications of grounds for a prohibition under section 26(1). The persons affected must tolerate these measures.
(6) A person obliged to provide information under subsection (4) or (5) may refuse to answer such questions as would expose that person, or a relative within the meaning of section 383(1), nos. 1 to 3 of the Code of Civil Procedure, to the risk of criminal prosecution or of proceedings under the Act on Regulatory Offences. The person concerned must be advised of the right to refuse to provide information.
(7) The Bundesanstalt may send representatives to the general meetings, shareholders' meetings or members' meetings, and to the meetings of the administrative or supervisory bodies, of securities institutions, financial holding companies or mixed investment holding companies constituted as legal persons. Those representatives may address the meeting. The persons affected must tolerate acts under the first and second sentences.
(8) The staff of the Bundesanstalt and of the Deutsche Bundesbank may search the premises of undertakings subject to the duty to provide information and produce documents under subsection (4), first sentence, and of members of their governing bodies, including after they have left office, where facts justify the assumption that the undertaking or the member of the governing body is impairing, jeopardising or delaying, contrary to a provision of this Act or an enforceable order made in an individual case on the basis of this Act, the clarification of a matter relevant to a decision for the purposes of supervision under this Act, by
1. not providing particulars, or providing them incorrectly, incompletely or not in good time, or
2. not producing documents, or producing them incorrectly, incompletely or not in good time. Except where there is danger in delay, searches must be ordered by a judge. Where there is danger in delay, the officer in charge of the operation at the Bundesanstalt may order the search, provided more than an insignificant delay is to be expected. Searches of premises serving as a residence must always be ordered by a judge. To that extent the fundamental right to the inviolability of the home (Article 13(1) of the Basic Law) is restricted. The Local Court in whose district the premises are situated has jurisdiction. An appeal lies against the judicial decision; sections 306 to 310 and 311a of the Code of Criminal Procedure apply correspondingly. A record must be made of the search. It must state the responsible office, the reason, time and place of the search and its result, and, where no judicial order was made, also the facts establishing the assumption of danger in delay. The persons affected must tolerate measures under the first sentence.
(9) The staff of the Bundesanstalt and of the Deutsche Bundesbank may seize objects that may be of importance as evidence for establishing the facts. Where the objects are no longer needed for the administrative proceedings, they are returned to the last person in possession of them. The persons affected must tolerate measures under the first sentence.