GERMANY Law and Practice Contributed by: Christina Malz and Sebastian Gröss, SZA Schilling, Zutt & Anschütz
4.2 Obtaining Documentary Evidence From Subject/Target Companies The FCO can obtain documentary information from the target by means of dawn raids (see 2.2 Dawn Raids/Search Warrants and 2.3 Spolia- tion of Information ) or seizure of objects (see 2.8 Protection of Confidential/Proprietary Informa - tion ). It can also issue requests for information (Section 59 of the ARC). 4.3 Obtaining Evidence From Entities Outside the Jurisdiction The FCO can obtain information from compa - nies or individuals outside Germany by seeking international legal assistance from the respective authorities. Co-operation within the ECN is well established. Further details are laid out in Sec - tion 50d of the ARC. To access data on servers or cloud storage that are located outside of Germany, the FCO does not necessarily have to rely on such legal assis - tance. The FCO has the powers to seize such data as long as this data is accessible to the person subject to the search (see also 7.5 Use of Messaging Applications and Chat Platforms ). 4.4 Domestic Inter-Agency Co-Operation Under Section 50f of the ARC, the FCO is entitled to share information with other agencies for the purpose of their respective tasks. This includes regulatory authorities (eg, the Federal Network Agency) and consumer protection authorities or the Federal Commissioner for Data Protection and Freedom of Information. If the FCO and the public prosecutor are conducting parallel investi - gations, there is extensive co-operation between them under Section 82 of the ARC.
or disclosed (unless obtaining or accessing this information amounts to a violation in itself). Companies with more than 50 employees are obliged to install internal reporting channels where employees can report information about violations. These channels must be accessible to employees and, if applicable, to other indi - viduals who are in contact with the undertaking in the context of their professional activities. The law also establishes external reporting channels to State authorities. The FCO acts as one of these statutory external reporting channels. In this role, the FCO operates a system for tip-offs via its website, which allows for the possibility to provide information anonymously. A similar tool has been in place since before the whistle-blower Protection Act was even in force and, according to the FCO, this tool increas - ingly contributes to uncovering cartel conduct. The authority thus expects a further increase of new cases to be uncovered by whistle-blowers since the specific safeguards for employees have been introduced with the Whistleblower Protection Act. 4. Procedural Framework for Cartel Enforcement 4.1 Obtaining Evidence From Employees The FCO has the powers to summon company employees as witnesses both in administrative proceedings and in fining proceedings (see 2.8 Protection of Confidential/Proprietary Infor - mation ). Nevertheless, the FCO only reluctantly relies on witness statements from employees in practice, unless the parties offer such state - ments as part of their co-operation efforts.
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