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
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
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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