Investigation of Unauthorised Payment Services and E-Money Business

(1) Where it is established, or facts justify the assumption, that an undertaking is providing unauthorised payment services or carrying on unauthorised e-money business, or is or was involved in the initiation, conclusion or winding-up of unauthorised payment services or e-money business, the undertaking, as well as the members of its governing bodies, its shareholders and its employees, must, on request, give BaFin and the Deutsche Bundesbank information on all business matters and produce documents. A member of a governing body, a shareholder or an employee must, on request, also give information and produce documents after leaving the governing body or the undertaking. BaFin may issue instructions to the undertakings and persons named in the first sentence for the protection of customer funds, data and assets.
(2) Insofar as this is necessary to establish the type or scope of the transactions or activities, BaFin may conduct examinations on the premises of the undertaking and on the premises of the persons and undertakings required under subsection (1) to provide information and produce documents; it may transfer the conduct of the examinations to the Deutsche Bundesbank. The staff of BaFin and of the Deutsche Bundesbank may for that purpose enter and inspect these premises during usual business hours. To avert imminent dangers to public order and safety, they are authorised to enter and inspect these premises also outside usual business hours, and to enter and inspect premises also used as a dwelling; the fundamental right under Article 13 of the Basic Law is restricted to that extent.
(3) The staff of BaFin and of the Deutsche Bundesbank may search the premises of the undertaking and of the persons and undertakings required under subsection (1) to provide information and produce documents. In the course of a search, the staff may also search the persons required to provide information and produce documents for the purpose of seizing items within the meaning of subsection (4). The fundamental right under Article 13 of the Basic Law is restricted to that extent. Searches of business premises and of persons must, except where there is danger in delay, be ordered by the court. Searches of premises used as a dwelling must be ordered by the court. The local court in whose district the premises are located has jurisdiction. An appeal lies against the court's 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 outcome, and, where no court order was made, also the facts that justified the assumption of danger in delay.
(4) The staff of BaFin and of the Deutsche Bundesbank may seize items that may be of importance as evidence for establishing the facts.
(5) The persons affected must tolerate measures under subsections (2) and (3), first and second sentences, and subsection (4). A person required to give information may refuse to answer questions the answering of which would expose that person or one of the relatives named in section 383(1), nos. 1 to 3 of the Code of Civil Procedure to the risk of criminal prosecution or of proceedings under the Regulatory Offences Act.
(6) Subsections (1) to (5) apply correspondingly to other undertakings and persons, provided
1. facts justify the assumption that they are involved in the initiation, conclusion or winding-up of payment services or e-money business that are provided or carried on in another state contrary to a prohibition existing there, and
2. the competent authority of that other state submits a corresponding request to BaFin.
(7) Insofar and for as long as facts justify the assumption, or it is established, that an undertaking is providing unauthorised payment services or carrying on unauthorised e-money business, BaFin may inform the public, naming the undertaking's name or business name, of the suspicion or of that finding. The first sentence applies correspondingly where an undertaking, while not providing the unauthorised payment services or carrying on the e-money business, creates the corresponding impression in public. The undertaking must be heard before the decision on publication of the information is taken. Where the information published by BaFin proves to be false, or the underlying circumstances are found to have been inaccurately reported, BaFin informs the public accordingly, in the same manner in which it previously made the relevant information known.