GERMANY Law and Practice Contributed by: Christina Malz and Sebastian Gröss, SZA Schilling, Zutt & Anschütz
searches at individuals’ homes and on their devices. In 2022, for example, of the 18 dawn raids conducted, 12 included searches of private premises. The obligations of a firm or individual faced with such an inquiry depend on whether they intend to co-operate with the FCO under the Leniency Notice or defend themselves. In the latter sce - nario, persons affected by a dawn raid might not have an obligation to actively support the officials in their search, but they must nonethe - less tolerate it and refrain from obstructing the investigation. By contrast, if the undertaking has already applied or intends to apply for leni - ency or a reduction of fines under the Leniency Notice, it must fully and continuously co-operate with the FCO under the FCO′s Leniency Notice. To conduct a dawn raid, the FCO must obtain a search warrant from the District Court of Bonn. A search warrant is only dispensable if there is imminent danger. The search warrant deter - mines the scope of the search. For example, if the search warrant has been rendered in light of alleged infringements concerning customers in a certain territory, any evidence clearly related to other customers may not be seized under a search warrant. However, in practice, the FCO may obtain extensions to the search warrant – or additional search warrants – from the court by an on-the-spot phone call. The FCO usually takes copies of paper docu - ments and portable electronic data and seizes original folders, phones, laptops and other port - able parts of the IT infrastructure. It may also take a copy of the server for IT forensic experts to analyse at the FCO’s premises in Bonn. This may include extensive screenings of emails and other electronic data, as well as the recovery of deleted data.
As a general rule, officers or employees are required neither to actively support the FCO′s search nor to respond to questions during a dawn raid unless duly summoned as witnesses. However, since the tenth amendment of the ARC in 2021, Section 59b(3) of the ARC provides that the FCO is entitled to request access to docu - ments or request information from directors and employees of the undertaking in order to gain access to evidence or receive explanations relat - ing to facts or documents. Non-compliance with this duty to co-operate would also entail a fine. The FCO is obliged to take minutes from the dawn raid, including lists of the individual piec - es of evidence seized, and must include these minutes in the case file. Access to files will be granted to legal counsel. 2.3 Spoliation of Evidence There are no specific rules on the spoliation of evidence in German competition law. The spo - liation of evidence can qualify as a disruption of official activities (Section 164 of the Code on Criminal Procedure) and can lead to a temporary arrest while the official activities are ongoing. If this obstructs the public enforcement of criminal charges (eg, in the case of bid rigging), it can also amount to an obstruction of justice (Section 258 of the Criminal Code). Criminal charges can also be applied if docu - ments under official seizure are destroyed, damaged, rendered unusable or removed, or if premises sealed by the authorities are opened (Section 136 of the Criminal Code). If the under - taking concerned co-operates in the context of leniency applications or settlement proceed - ings, any spoliation of information will put the positive outcome of these endeavours at risk. In a defence scenario, any attempt to impair the FCO′s investigation would be considered
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