In an order of 6 March 2014, the German Federal Constitutional Court (the Constitutional Court) did not accept the complaints by several companies that were found to have committed a cartel offence challenging a recent German court decision that approved the disclosure of a criminal investigation file containing a leniency application and the confidential version of a cartel decision to a civil court reviewing a damage claim against those companies. The companies argued that the challenged decision infringed their fundamental rights guaranteed under the German constitution.
The Constitutional Court did not accept the complaints because it found that the issues raised had already been clarified with regard to the underlying legal principles and that the disclosure at stake, whilst indeed interfering with the fundamental right to protection of their business and trade secrets, was justified.
In an order of 26 November 2013, the German Higher Regional Court of Hamm had ruled that a leniency application as well as parts of the confidential version of the European Commission's 2007 decision to fine the members of an elevator and escalator cartel a total of more than € 992 million, which both were included in a criminal investigation file, could be disclosed by the public prosecutor to the Regional Court of Berlin, which had been asked to rule on a damages claim against members of this cartel (see VBB on Competition Law, Volume 2014, No. 2, available at www.vbb.com).
The Constitutional Court has now decided that the interpretation by the Higher Regional Court of Hamm of the relevant provisions in the German codes of civil and criminal procedure was not objectionable. The Higher Regional Court of Hamm found that the German law of criminal procedure implies that, prior to filing a request for access to a criminal investigation file, the requesting civil court has to assess carefully the necessity of disclosure of the file taking account of the particular circumstances of the case concerned. This necessity assessment has to be made not by the public prosecutor but only by the requesting court, which is solely responsible for deciding on the permissibility of the transmission of the file.
The Constitutional Court emphasised that it is for the requesting civil court to assess to what extent it can use the information contained in the criminal investigation file. If the requesting civil court decides to use the information contained in the file for its decision, the data will also have to be made available to the plaintiffs seeking damages. Therefore, the requesting civil court has to carefully take into account the fundamental right to protection of business and trade secrets of the companies concerned when assessing to what extent it can use the information contained in the criminal investigation file.
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