GERMANY Law and Practice Contributed by: Bettina Mertgen, Felix Siebler, Michael Herold and Sebastian Faust, GvW Graf von Westphalen
ments of competition law, eg, price fixing or custom - er allocations. Overall, comparable principles as for criminal proceedings apply, but co-operation duties in competition proceedings are more extensive. 7.5 Legal Professional Privilege and Confidentiality Germany recognises legal professional privilege and confidentiality through statutory secrecy obligations and procedural safeguards, which generally apply in defence sector investigations. Communications with external legal counsel are typically protected, and defence companies often involve lawyers in internal investigations and regulatory matters. These protections are not absolute. Authorities may challenge privilege claims, particularly in cases involv - ing espionage, unlawful arms exports, sanctions vio - lations, terrorism or other national security concerns. Classified information also remains subject to appli - cable security rules, even when reviewed by legal advisers. Accordingly, legal privilege is recognised in Germany but may be limited where criminal law or overriding national security interests are engaged. 7.6 Debarment and Exclusion From Future Procurement Specified criminal convictions (including corrup - tion, fraud, money laundering and terrorist financ - ing) trigger mandatory exclusion under Section 123 of the Competition Act; regulatory breaches such as anti-competitive conduct or grave professional mis - conduct may trigger discretionary exclusion under Section 124. Germany does not maintain a central - ised debarment register – each contracting author - ity assesses exclusion grounds on a project-specific basis. The exclusion period is generally up to five years for mandatory grounds and up to three years for discretionary grounds. Self-cleaning is available under Section 125. The affected entity must demonstrate that it has paid or undertaken to pay compensation, co-operated with investigating authorities and implemented concrete organisational and personnel measures to prevent future misconduct. The contracting authority assesses
the sufficiency of these measures in light of the gravity and circumstances of the offence. If self-cleaning is accepted, exclusion may not be imposed. 7.7 Civil Litigation and Dispute Resolution Defence-related disputes in Germany are generally resolved by civil courts (for contractual and commer - cial matters) or administrative courts (for government decisions, procurement awards, export licences and regulatory measures). Arbitration may be used where agreed by the parties, particularly in cross-border transactions, while mediation and other ADR mecha - nisms are less common. Germany has no dedicated defence court system. Defence disputes are handled through the ordinary judicial system or arbitration. Where classified infor - mation or national security issues are involved, courts may apply special safeguards, such as restricted doc - ument access, confidentiality orders, closed hearings, and limits on disclosure of sensitive information. Gov - ernment authorities may also refuse disclosure where The German Whistleblower Protection Act (HinSchG) provides a comprehensive framework for the protec - tion of whistle-blowers; however, Section 5 of the Act ( Vorrang von Sicherheitsinteressen sowie Verschwie- genheits - und Geheimhaltungspflichten ) contains important exemptions for matters relating to defence and security. Protection is significantly restricted in the following areas. national security interests are at risk. 7.8 Whistleblower Protections • Information relating to national security or essential security interests of the state, in particular military or other security-sensitive matters within the remit of the Federal Ministry of Defence or critical infra - structure. • Information from federal or state intelligence ser - vices or from authorities performing tasks under Section 10 (3) of the Security Clearance Act. • Information on public procurement and the award of concessions falling within the scope of Article 346, TFEU. • Information that conflicts with confidentiality obligations relating to classified information ( Ver- schlusssachen – VS) in this regard; however, there
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