You are here:
Constitutional complaints relating to the search of a law firm in connection with the “diesel emissions scandal” unsuccessful
Press Release No. 57/2018 of 06 July 2018
Ordering the search of the Munich office of the law firm Jones Day and upholding the securing of the documents found for the purpose of examination is not objectionable under constitutional law. This was the decision rendered by the Third Chamber of the Second Senate of the Federal Constitutional Court in an order published today. The Chamber did not admit for decision two constitutional complaints of the Volkswagen AG, two constitutional complaints of the Jones Day law firm and one constitutional complaint of lawyers working for Jones Day. In their constitutional complaints, the complainants challenged the measures mentioned above and the regular courts’ decisions upholding these measures. In its reasoning, the Chamber stated that the securing of the documents neither constitutes a violation of the Volkswagen AG’s right to informational self-determination nor of its right to a fair trial, and that there is no recognised legal interest in bringing an action concerning the search. The law firm Jones Day is not a holder of fundamental rights and, therefore, does not have standing to lodge a constitutional complaint; the lawyers working for Jones Day do not have any apparent standing to lodge a constitutional complaint.
In connection with a criminal investigation conducted in the USA relating to manipulated emissions of diesel vehicles, the Volkswagen AG tasked the international law firm Jones Day in September 2015 with carrying out internal investigations, providing legal advice and representing it vis-à-vis US law enforcement authorities. In order to investigate the facts, the lawyers of Jones Day examined many documents within the Volkswagen group and conducted interviews with employees throughout the Volkswagen group. Lawyers from the Munich Office of the law firm were also involved in the case.
The Munich II public prosecution office opened an investigation based on suspicion of fraud and illegal advertising relating to events in the context of the 3.0-litre diesel engines of the Audi AG, a subsidiary of the Volkswagen AG, which itself did not employ the Jones Day law firm. At first, the investigations were initiated against persons unknown and, as of 29 June 2017, against several specific persons charged with criminal offences (Beschuldigte). On 29 June 2017, the Munich II public prosecution office also initiated regulatory fine proceedings against the Audi AG itself pursuant to § 30 of the Act on Regulatory Offences (Ordnungswidrigkeitengesetz – OWiG). The Braunschweig public prosecution office is conducting another criminal investigation against several persons charged with criminal offences concerning a 2.0-litre diesel engine built by the complainant.
Upon application by the public prosecution office, the Munich Local Court (Amtsgericht) ordered the search of the Munich offices of the Jones Day law firm on 6 March 2017. During the search on 15 March 2017, numerous files as well as a large number of electronic data containing the results of the internal investigations were secured. The Munich Local Court upheld the securing in its decisions of 21 and 29 March 2017. The complaints lodged against the search order and the upholding decisions were unsuccessful. The Volkwagen AG and Jones Day now challenge these in their own constitutional complaints directed against the search order and the upholding decision, respectively; the constitutional complaint of the three lawyers of the law firm is directed against both measures.
Key considerations of the Chamber:
I. Constitutional Complaints of the Volkswagen AG
1. The constitutional complaint of the Volkswagen AG, directed against the search order of the local court and the subsequent decision on the complaint of the Munich I Regional Court (Landgericht) of 8 May 2017, is inadmissible due to the lack of a recognised legal interest in bringing an action. As the complainant’s own offices were not searched, but rather its lawyers’ offices, the interference with the fundamental right under Article 13 of the Basic Law (Grundgesetz – GG) which the search involves does not immediately concern the complainant. Inasmuch as the search order, pursuant to § 110 of the Code of Criminal Procedure (Strafprozessordnung – StPO), provided the basis for examining the documents and files that were found during the search, the orders of 21 and 29 March 2017 upholding the securing superseded the search order as the basis for the examination procedure in the context of the proceedings.
2. The orders of the Munich Local Court of 21 and 29 March 2017, which judicially upheld the securing of the documents and files found during the search, and the subsequent order on the complaint of the Munich I Regional Court of 7 July 2017, do affect the complainant’s fundamental right to informational self-determination because examining the data and potentially drawing upon it for further investigations can compromise Volkswagen’s exercise of specific freedoms, i.e. its business activities. However, the interference with fundamental rights is justified under constitutional law. Its legal basis is § 110 StPO. The manner in which the regular courts interpreted and applied this provision is not at all objectionable under constitutional law.
a) It does not violate constitutional law that the regular courts, in accordance with the prevailing opinion expressed in case-law and legal doctrine, considered that § 160a(1) first sentence StPO does not apply with regard to seizure (§ 94 StPO) or the prior securing for examination. § 160a(1) first sentence StPO states that investigative measures are inadmissible, if they are directed against a lawyer and will potentially result in information about which the lawyer is entitled to refuse testimony. It is not constitutionally required to extend the absolute protection of § 160a(1) first sentence StPO to cover searches including the preliminary securing for examination or to the seizure of a lawyer’s client files. Providing an absolute prohibition to collect and use evidence in § 160a(1) StPO considerably restricts effectiveness of law enforcement as required under constitutional law. According to the case-law of the Federal Constitutional Court, such absolute prohibitions are only feasible in exceptional cases, such as, in particular, where an investigative measure would constitute an interference with the scope of protection of human dignity, which, from the outset, cannot be subject to a balancing test. In the case at hand, such reasons have neither been stated, nor are they evident.
b) To the extent that the regular courts assumed that § 97(1) no. 3 StPO, just like § 97(1) nos. 1 and 2 StPO, constitutes a prohibition of seizure only in the context of relationships of trust between a person subject to professional confidentiality and the person charged with a criminal offence within a specific criminal investigation, this also does not violate constitutional law. Such an interpretation is in accordance with the wording, the systematic concept, the legislative history and the spirit and purpose of the provision and is not arbitrary. It is not required under constitutional law to interpret § 97(1) no. 3 StPO more broadly and to assume that the protection from seizure is independent of the relationship between the person subject to professional confidentiality and the person charged with a criminal offence. Such an interpretation would result in the extensive protection from seizures and from searches on the premises of persons subject to professional confidentiality, significantly limiting effectiveness of law enforcement as required under constitutional law. The potential for abuse would also be high, if the protection from seizures were extended to every client relationship, regardless of whether the client is charged with a criminal offence or not. Evidence could be intentionally moved to the lawyer’s sphere or handed over selectively.
c) It does not raise constitutional concerns that the regular courts assumed that the complainant was not a person charged with a criminal offence or in a position similar to that of a person charged with a criminal offence within the meaning of § 97(1) StPO.
aa) In particular, the Munich I Regional Court did apply an acceptable standard to evaluate whether a legal person is in a position in the context of proceedings that is similar to that of a person charged with a criminal offence. In accordance with what is likely the prevailing opinion, the court held that the protection of legal persons from seizures pursuant to § 97(1) StPO is not dependent on their formal position of being subject to investigation, but rather it requires, according to objective criteria, the possibility of their being subject to future investigation. It is not constitutionally required to assume that a company already takes on a position similar to that of a person charged with a criminal offence, thus resulting in the protection from seizures under § 97(1) StPO, the moment it fears future criminal investigations directed against it and therefore seeks legal advice from a lawyer or orders an internal investigation of the company. This is underscored by the fact that it barely appears possible to reliably determine the limits of the protection from seizures without any objective criteria.
bb) The regular courts also did not have to treat the complainant as a person charged with a criminal offence simply on the basis that it is, on suspicion of a regulatory offence (Ordnungswidrigkeit), formally registered as being subject to investigation by the Braunschweig public prosecution office and is thus in a position similar to that of a person charged with a criminal offence in the context of those proceedings. The criminal investigations of the Munich II public prosecution office and the Braunschweig public prosecution office are based on offences that are qualified as separate offences under procedural law (prozessuale Taten). It does not raise any constitutional concerns that the proceedings have not been joined.
cc) The Munich I Regional Court came to the conclusion that the position of the Audi AG in the context of the proceedings is irrelevant with regard to the protection from seizures under § 97(1) StPO. That is not objectionable under constitutional law. It is not constitutionally required to extend the protection of a lawyer-client relationship involving the parent company to subsidiary companies and to grant the parent company an opportunity to claim a prohibition of seizures given the subsidiary company’s position that is similar to that of a person charged with a criminal offence.
d) Finally, the challenged decisions affirmed the proportionality of securing the documents and data for the purpose of examination according to § 110 StPO that were found in the office of the Jones Day law firm. That does not violate constitutional law.
3. To the extent that the complainant claims that its right to a fair trial according to Art. 2(1) in conjunction with Art. 20(3) GG has been violated, the constitutional complaints are also unfounded. It cannot, in any case, result in a more comprehensive protection than the one that results from Art. 2(1) GG in its manifestation as the right to informational self-determination.
II. Constitutional complaints of the Jones Day law firm
The constitutional complaints of the Jones Day law firm, which is organised as a partnership under the law of the US state of Ohio, are inadmissible due to the firm’s lack of ability to lodge a constitutional complaint. It is not a holder of fundamental rights as it is not a domestic legal person within the meaning of Art. 19(3) GG. It cannot be inferred from its submissions that its principal office is located in Germany or another Member State of the European Union. The complainant also does not state, nor is it apparent, that the majority of decisions pertaining to its management are taken in the German offices of the law firm or in another office within a Member State of the European Union.
The complainant’s constitutional complaint also does not have to be regarded as coming from a domestic legal person on the grounds that the Munich Office was affected by state investigative measures. To the extent that the complainant seeks to derive from the decision of the First Chamber of the Second Senate of the Federal Constitutional Court of 18 March 2009 – 2 BvR 1036/08 – its status as a holder of fundamental rights, there is nothing in the complainant’s submissions to show that the criteria established by this Chamber decision are fulfilled.
III. Constitutional complaint of the lawyers of the Jones Day law firm
The constitutional complaint of the lawyers of the Jones Day law firm is inadmissible because they do not have any apparent standing to lodge a constitutional complaint. It cannot be inferred from their submissions that the search order or upholding the securing violated any of their own fundamental rights. In this respect, the constitutional complaint does not meet the statutory requirement to state reasons (§ 23(1) second sentence, § 92 of the Federal Constitutional Court Act, Bundesverfassungsgerichtsgesetz – BVerfGG).
1. a) With regard to the offices of the Jones Day law firm in Munich, the complainants are not holders of the fundamental right under Art. 13(1) GG. In the context of offices, the protection of Art. 13(1) GG usually extends only to the business owner as the authorised user, and not the individual employees. Therefore, complainants nos. 2 and 3, as employees cannot in principle invoke the fundamental right of inviolability of the home. While complainant no. 1 is a partner of the Jones Day law firm, the partners are only jointly authorised to use the premises. Therefore, the right can only be invoked by the partners jointly or, to the extent that its legal capacity is recognised, by the partnership.
In addition, the complainants have not stated that the offices they use serve as individual retreats and must thus be attributed to their personal private sphere. As grounds for their constitutional complaint, they submit only their position as lawyers, the practice of their profession and the effects on the mutual trust between lawyers and their clients. However, this professional aspect only affects the Jones Day law firm.
b) The search order does not violate Art. 12(1) GG. According to the Federal Constitutional Court’s case-law, a tendency to regulate occupations (berufsregelnde Tendenz) cannot be inferred in the mandatory provisions of criminal procedure under Section 8 of the First Chapter of the StPO and the measures based thereon because they affect all criminal persons charged with criminal offences indiscriminately, or are directed at everyone, as, for example, § 103 StPO. The complainants did not assert a violation of Art. 2(1) GG in the form of the right to business and professional activities; they only claim standing to lodge a constitutional complaint based on the argument that the Jones Day law firm was adversely affected.
c) The complainants also did not establish a possible violation of their right to informational self-determination through the search order. The search order was not directed at obtaining personal data, but rather aimed at information that the law firm had collected or drawn up given its client relationship with the Volkswagen AG. The fact that the complainants collected or drew up this information in the course of practicing their profession does not change the fact that the data is connected to the case. Consequently, the data must be attributed to the Jones Day law firm, the Volkswagen AG as the initiator of the internal investigation and the Audi AG to the extent that the information came from its sphere. As far as the complainants state on an abstract level that the e-mail traffic that was secured routinely contained a variety of personal information, such as sender and recipient data, from which activities of the sender or the recipient may be inferred, they do not specifically set out in the case at hand which information might allow conclusions to be drawn as to their personal situations.
d) The complainants cannot invoke the right to a fair trial according to Art. 2(1) in conjunction with Art. 20(3) GG as they are not considered parties to the proceedings, not even in a broader sense, because their rights are not affected.
2. The complainants also did not state that their own fundamental rights were affected by the decisions upholding the securing, and the subsequent decision on the complaint. To the extent that files and folders were secured, they do not have standing to lodge a constitutional complaint with regard to Art. 14(1) GG. According to their own submission, these objects are owned by the Jones Day law firm, which thus holds the right of possession. With regard to the right to informational self-determination and the right to a fair trial, the considerations stated in connection with the search order apply accordingly.