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Constitutional complaints against the use of the public prosecutor’s investigation files in a civil action not admitted for decision

Press Release No. 32/2014 of 03 April 2014

Order of 06 March 2014
1 BvR 3541/13

In a decision that was published today, the Third Chamber of the Federal Constitutional Court’s First Senate did not admit for decision the constitutional complaints of several companies that used to belong to a cartel of European elevator manufacturers. The constitutional complaints challenge that the public prosecutor’s investigation files, which inter alia contain confidential information from the antitrust proceedings, were used in a lawsuit for damages against the complainants. The interpretation of the relevant law of criminal and civil procedure by the Hamm Higher Regional Court (Oberlandesgericht Hamm) is not objectionable under the Constitution. According to this decision, the prosecutor’s office which is asked to grant access to the files only needs to examine its competence on an abstract level. The Regional Court which had asked to be granted access to the files, on the other hand, decides on their use based on a balancing of interests, which must take the fundamental rights of the complainants sufficiently into account.

Facts of the Case and Course of the Proceedings:

The complainants belonged to a cartel of European elevator manufacturers. In antitrust proceedings, the complainants applied to the European Commission for leniency and, in part, filed so-called Bonusanträge (leniency applications) with the Bundeskartellamt (Federal Cartel Office). In the hope for more lenient penalties promised for such behaviour, and mentioning commercially sensitive information, they exposed the structures of the cartel. The violation of European competition law has meanwhile been established by a final judgment. The Bundeskartellamt handed over the persecution of the individuals who had actively been involved to the public prosecutor’s office. Thus, a copy of an application made by several complainants under the German leniency provisions became part of the public prosecutor’s files. In the course of its investigations, the public prosecutor’s office also received a copy of the confidential version of the European Commission’s penalty notice from the enterprise to which some of the complainants belong.

In December 2010, several construction companies instituted proceedings before the Berlin Regional Court (Landgericht Berlin) against the complainants, asking for compensation for cartel-related damage. The Berlin Regional Court decided to use the investigation files of the Düsseldorf Prosecutor’s Office (Staatsanwaltschaft Düsseldorf). The Prosecutor’s Office informed the complainants of its intent to grant the requested access to the files. Each of the complainants opposed this with an application for a decision by the court. The Hamm Higher Regional Court (Oberlandesgericht Hamm) rejected these applications as unfounded.

Key Considerations of the Chamber:

The Chamber does not admit the constitutional complaints for decision, because the questions they raise have already been resolved on a fundamental level and, according to these standards, the constitutional complaints are unfounded. In particular, there is no violation of the protection of trade and business secrets deriving from Art. 12 sec. 1 of the Basic Law (Grundgesetz – GG).

1. The Higher Regional Court interpreted the relevant provisions of criminal and civil procedure as meaning that, as a general rule, the prosecutor’s office which is asked by a court for access to files only examines its competence on an abstract level. The Court held that neither the complainant’s references to an impending violation of the protection of trade and business secrets and the right to informational self-determination, nor the fact that the investigation files contained information from leniency applications and the confidential decision by the European Commission, had to create a specific cause for the prosecutor’s office to further examine the permissibility of the transmission. It was the Regional Court requesting the access to files that was responsible for the permissibility of the transmission. Having received the investigation files, but before granting access to them, the Regional Court would have to balance the affected interests of the complainants and of the plaintiffs suing for damages.

2. This interpretation of the criminal and civil procedural provisions is not objectionable under the Constitution. In the case at hand, the interference with the protection of trade and business secrets deriving from Art. 12 sec. 1 GG by granting access to the files is not disproportionate.

a) According to the comprehensible interpretation of the Higher Regional Court, the interplay of criminal and civil procedure is based on the concept that the court requesting access to files balances the affected interests, taking into account the legitimate interests of the complainants, and thus examines whether information from the requested investigation files may be used in civil proceedings – and thus for different purposes. This corresponds to the “double door model” (Doppeltürmodell, cf. BverfGE 130, 151), which, as a model for the exchange of data for official duties, requires an individual legal basis for each of the corresponding interferences. The provisions of the Code of Criminal Procedure (Strafprozessordnung) provide the basis for the transmission, while the Code of Civil Procedure (Zivilprozessordnung) provides the basis for the request and the further use in civil proceedings.

b) According to the interpretation of these provisions by the Higher Regional Court – which corresponds to the legal view of the requesting court – the Regional Court can only use the transmitted files on the basis of a balancing of interests; under this balancing, the fundamental rights of the complainants can and must be sufficiently taken into account. This balancing must comprehensively and as a whole take into account how the legal interests of all parties are affected, and what the respective advantages and disadvantages are. If, like in the case at hand, the legislature leaves the conflict of legal interests to the court to balance without setting any criteria for this, the court must ensure that it describes in its decision the criteria that informed its balancing of interests in a way that significantly helps to specify the balancing programme, to rationalise the balancing process, and to ensure the accuracy of the balancing result.

Contrary to the complainants’ allegations, it is not apparent that considerations of the Higher Regional Court on the matters of civil procedure are clearly wrong and that the Regional Court thus cannot perform a balancing of interest. It is recognised under the law of civil procedure that the conflicting parties do not have an absolute right to access the files of other authorities that are used in the proceedings. If the transmitting authority limits the plaintiffs’ access to the files completely or in part, this has the consequence that, due to Art. 103 sec. 1 GG, the part of the transmitted file to which no access can be granted cannot be used in civil proceedings. If the Higher Regional Court thus requires the Regional Court to conduct a balancing of interests before potentially granting the plaintiffs in the proceedings for damages access to the files, this forces the court to consider all constitutionally relevant issues under ordinary law.