When a client places money in the form of deposits at the bank’s disposal, the entries for this are made in accounts which the client keeps at the bank. Clients are herewith referred to point No. 20 of the bank’s general business conditions regarding the deposit protection fund.
When clients of the bank have securities kept in a deposit account, these securities are generally kept in a securities clearing and depositing bank. These banks function − particularly in the case of securities traded on the stock exchange − as so-called central custodians, each in the area of its jurisdiction. Thus, in particular, foreign securities are generally kept in the corresponding foreign country. This applies, above all, to securities which clients have acquired abroad and which are not traded domestically, neither on a stock exchange nor elsewhere, or securities which are traded domestically, possibly in a stock exchange, but are normally acquired abroad. The same applies when clients effectively deliver securities, domestic or foreign, to the bank for safekeeping or have deposit credit balances transferred from another custodian.
If the bank does not keep the securities of a client, then the bank undertakes to select, commission and regularly monitor the custodian with the required care and conscientiousness. When selecting a custodian based in a third country (i.e. in a country outside of the European Union), the bank also takes care that this custodian is subject to special regulations for keeping financial instruments in safe custody and that this is monitored. When custodianship of financial instruments for the account of another person is not regulated in a third country, then the bank has financial instruments of the client kept by a third party in this third country only if this third party is the only possible custodian, due to the type of financial instruments in question or the type of securities services associated with these instruments.
The bank has undertaken the following measures to protect its clients’ rights to their financial instruments, particularly securities:
- Records and correct bookkeeping make it possible at all times to assign each client’s funds and financial instruments held by the bank to the respective client and to separate these funds and financial instruments held by the bank from the bank’s own assets.
- The bank regularly compares its records and books with those of all third parties where the bank has its clients’ funds and financial instruments held in safekeeping.
- The bank ensures that all financial instruments of its clients held in safekeeping by a third party can be distinguished from its own financial instruments and those of the third party either by distinct designations of the accounts kept in the third party’s books or by measures which provide a comparable level of protection.
- The bank takes organizational precautions to minimize the risk that neglect of duty may lead to a loss or partial loss of its clients’ funds, their financial instruments and/or their associated rights.
In particular, the bank has the other custodians confirm that they enter the values which they are keeping for clients of the bank into deposits which are labelled “client deposit”, that they assert rights of lien, retention rights and similar rights to the values in this client deposit only because of claims that result from procurement, administration and safe-keeping of these values, and that they notify the bank without delay when attachments or other debt enforcement measures are initiated by a third party in respect to the values or these values are affected by other interventions, and that the values will either be kept in safekeeping by the custodian itself within the borders of the country in question or that this custodian will not entrust a third party with safekeeping them or transfer them into a third country unless the bank has consented.
Insofar as the bank does not keep its clients’ financial instruments itself, the bank is liable for carefully selecting and instructing the custodians which keep them in custody for the bank.
The client grants the bank, on the basis of the general business conditions, a right of lien to all assets that are kept in the client’s account/deposit. This right in lien serves to secure all current and future claims of the bank vis-à-vis the client that arise from the business relationship. The bank may retain assets subject to this right in lien only on the basis of a justified interest in security.