Appellate decision; duty to refer

(1) The appellate court decides by order according to its free conviction formed from the overall outcome of the proceedings. The order may be based only on facts and evidence on which the parties were able to comment. The appellate court may depart from this insofar as intervening parties were not granted access to the files on account of legitimate interests of the parties or third persons, and the content of the files was for that reason also not brought forward. This does not apply to such intervening parties who are involved in the disputed legal relationship in such a way that the decision can only be rendered uniformly as against them too.
(2) Where the appellate court considers BaFin's order unlawful or unfounded, it sets the order aside. Where the order has previously been disposed of by withdrawal or otherwise, the appellate court declares, on application, that BaFin's order was unlawful or unfounded, where the appellant has a legitimate interest in that finding.
(3) Where the appellate court considers the refusal or omission of the order unlawful or unfounded, it declares BaFin's obligation to issue the requested order.
(4) The order is also unlawful or unfounded where BaFin has exercised its discretion defectively, in particular where it has exceeded the statutory limits of discretion or, through the exercise of discretion, has infringed the meaning and purpose of this Act.
(5) The decision must be reasoned and served on the parties.
(6) Where the appellate court intends to depart from a decision of a Higher Regional Court or of the Federal Court of Justice, it refers the matter to the Federal Court of Justice. The Federal Court of Justice decides in place of the Higher Regional Court.