GERMANY Law and Practice Contributed by: Christina Malz and Sebastian Gröss, SZA Schilling, Zutt & Anschütz
an aggravating factor, which would increase the fine. 2.4 Role of Counsel Any legal or natural person affected by an investigation has a right to a defence counsel at their own expense (Section 137 of the Code on Criminal Procedure) and it is very important that suspects seek legal representation early on. External counsel and company counsel may be present during dawn raids, even though the FCO does not have to wait for the arrival of any coun - sel to start the dawn raid. Company counsel may be present during the interview of an employee if the employee agrees. However, company counsel must not act as defence counsel for their employer or other employees of the undertaking under investiga - tion (Section 46c of the Federal Lawyers′ Act or Bundesrechtsanwaltsordnung ). According to Section 146 of the Code on Crimi - nal Procedure, any counsel can only act on behalf of one person in one proceeding. How - ever, an exception to this rule is the simulta - neous representation of the undertaking con - cerned and an individual (often a director) of the same undertaking. If several employees from the same company require legal representation, they need separate counsel, which can come from the same law firm. Once an undertaking and its counsel become aware of enforcement efforts, they must immediately decide whether to co- operate with the FCO or defend itself. This deci - sion determines all steps that follow. Regard - less, a counsel must engage in extensive internal fact-finding in order to have a robust basis for any decisions and formulate the best strategic approach.
If the undertaking decides to co-operate with the authority under the Leniency Notice, a counsel will place a marker with the FCO (and potentially other antitrust authorities) as soon as possible and remain in close contact with the FCO. If the undertaking intends to defend itself against the allegations, the initial role of the undertaking (and counsel) is rather passive towards the authority until receipt of the statement of objections. In addition, a counsel will need to assist in ensur - ing that the infringement ceases effectively and instruct staff accordingly. This may be different in a co-operation scenario where the FCO requests that the cartel be continued so as to guarantee the confidentiality of the investigation until fur - ther notice. 2.5 Obtaining Evidence/Testimony Leniency statements, witness testimonies and the seizure of documents and data carriers are the most important means of evidence. In fining proceedings, the hearing of witnesses follows Sections 48 et seq of the Code on Crimi - nal Procedure. Interviews with the suspects fol - low Sections 133 et seq of the Code on Criminal Procedure, and the taking of evidence other than the hearing of witnesses is governed by Sections 94 et seq of the Code on Criminal Procedure. In a co-operation scenario, the right of the sus - pects to refuse testimony under these provisions conflicts with their duty to co-operate in order to receive immunity or reductions of the fines. The FCO is empowered to conduct all neces - sary investigations and collect all necessary evi - dence. Essentially, the FCO can interview wit - nesses, request and review information, conduct dawn raids and seize evidence. The first cases of wiretapping have also been seen.
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