Removal of Managers and Members of the Administrative and Supervisory Body, Transfer of the Powers of Governing Bodies to Special Commissioners

(1) In the cases under section 13(2), nos. 3 to 5, and under section 37(2), no. 3, BaFin may, instead of revoking the licence or registration, require the removal of the responsible managers and may also prohibit those managers from exercising their activity at institutions. In the cases under section 13(2), no. 5, BaFin may also require the temporary removal of the responsible managers and may temporarily prohibit them from exercising a managerial activity at the institution and at any other obliged entity within the meaning of section 2(1) of the Anti-Money Laundering Act. BaFin may also issue the order under the second sentence against any other person responsible for the breach.
(2) BaFin may appoint a special commissioner. Section 45c of the Banking Act applies correspondingly.
(2a) The supervisory authority may issue a formal warning to a manager who has breached the provisions of this Act, of the Anti-Money Laundering Act, or of the regulations issued to implement these Acts, or orders of BaFin. The subject matter of the warning is the finding of the facts material to the decision and of the breach established by those facts.
(3) BaFin may also require the removal of a manager and prohibit that person from exercising activity at institutions where that person has breached the legal acts named in subsection (2a) or orders of BaFin, and continues that conduct, wilfully or recklessly, notwithstanding a formal warning issued by BaFin under subsection (2a).
(4) The members of an institution's administrative or supervisory body must be reliable and possess the expertise necessary to perform the oversight function and to assess and monitor the business conducted by the institution. In examining whether a person named in the first sentence possesses the requisite expertise, BaFin has regard to the scale and complexity of the business conducted by the institution. Where facts exist showing that a person named in the first sentence is not reliable or does not possess the requisite expertise, BaFin may require the institution to remove that person or to prohibit that person from exercising activity. BaFin may also make this requirement of the institution where a person named in the first sentence has remained unaware of material breaches by the institution of the principles of proper management, owing to a negligent exercise of that person's monitoring and control function, or has failed to take all measures necessary to remedy established breaches, and continues that conduct notwithstanding a formal warning to the institution by BaFin. Insofar as the court, on the application of the supervisory board, must remove a supervisory board member, that application may, where the conditions of the third or fourth sentence are met, also be made by BaFin, where the supervisory board has not complied with the supervisory authority's request for removal. The provisions of the co-determination acts on the election and removal of employee representatives on the administrative or supervisory body remain unaffected.