GERMANY Law and Practice Contributed by: Christina Malz and Sebastian Gröss, SZA Schilling, Zutt & Anschütz
The hearing of witnesses follows the general rules of the Code of Civil Procedure; witnesses can refuse their testimony under the conditions laid out in Sections 383 et seq of the Code on Civil Procedure (see 2.6 Attorney-Client and Other Privileges ). Further details are regulated in Section 57 (2‒6) of the ARC – for example, witness statements must be recorded in writ - ing. The FCO can also seize objects (including documents and data carriers) in accordance with Section 58 of the ARC. The tenth amendment of the ARC has given additional powers to the FCO regarding, inter alia, requests for information. The authority can now widely request information (including mar - ket studies and related analysis) from compa - nies. Furthermore, the FCO may also review docu - ments at the premises of a company during nor - mal business hours (Sections 59 and 59a of the ARC). Some of these new powers have been criticised as far too broad and vague in terms of consti - tutional law. The FCO has made use of these powers for the first time in 2024 in proceedings in a vertical case ( Pfanner Schutzbekleidung ). 2.6 Attorney-Client and Other Privileges German law does not specifically privilege attor - ney-client communication. The German Code on Criminal Procedure does, in principle, acknowl - edge the right of attorneys to refuse testimony and also grants protection from the seizure of documents. In practice, these safeguards only apply to correspondence directly related to the defence in a particular case. Any other correspondence – in particular, the results of internal investigations – may be subject
to seizure. The Constitutional Court approved such a narrow understanding of the relevant provisions in its 2018 Jones Day decision. The protection from seizure does not extend to in- house counsel unless the correspondence in the in-house counsel′s possession constitutes defence communication with external counsel. Other Relevant Privileges Generally, witnesses can refuse testimony for the reasons set out in Sections 383 et seq of the Code on Civil Procedure – for instance, a witness does not have to testify against close relatives. Section 384 contains a list of factual reasons that would allow a witness to refuse to give testimony – for example, if the testimony would entail the risk of being prosecuted for a criminal offence or an administrative offence (nemo tenetur). The tenth Amendment to the ARC of 2021 intro - duced a severe limitation to the principle of nemo tenetur. When it comes to requests for information, the addressee may have to provide self-incriminating information if the FCO can - not obtain this information otherwise. The rel - evant information may then be used against the undertaking. However, its use against a natural person providing the information would require their prior consent. 2.7 Non-Cooperation Non-cooperation with the FCO may lead to a substantial fine in several situations – for exam - ple, when a formal request for information is not answered or if the response is incorrect, incom - plete or belated. Companies may receive fines if they refuse access to their premises during a dawn raid or a request for a review of evidence. In addition, the obstruction of a dawn raid – for example, by deleting evidence during the search,
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