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Guidelines

For inspection by German Competition Authorities

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What documents must the officials present?

German Competition Authorities
 

  • In principle, the officials must present a search warrant issued by a court. Exception: No search warrant is needed in the event of imminent danger.
  • If the officials present a search warrant, check very carefully: 
    • Is our company the addressee?
    • What accusations are being raised against our company (subject matter of the inspection)?
    • Where may the officials search?
  • If there is no search warrant, object to any inspection. However, do not attempt to stop the officials. This also applies if the officials extend the scope of the investigation on the spot.

German Competition Authorities
 

  • In principle, you are only obliged to passively tolerate the inspection. You are therefore not obliged to actively assist the inspection. However, if you refuse the inspection, the officials may use direct force (e.g. to open a cupboard). Therefore cooperation is recommended.
  • The officials may demand information that could enable access to evidence (e.g., passwords, location of documents) if they explicitly mention the duty to cooperate. In this case, you are obliged to cooperate and failure to do so can result in fines.
  • The inspection can extend to all business premises, cupboards, desks, safes, cars, IT systems or persons. You may not deny the officials access to any such premises and/or objects.
  • The officials are also entitled to ask questions (see "Who may be interviewed by the officials and how?").

What may the officials search?

German Competition Authorities

Most Important

  • Never voluntarily surrender any objects or documents. Always insist on a formal seizure. However, do not resist formal seizure.

Documents

  • In principle, the officials may seize originals of all documents, even if they contain business secrets. Therefore, make a copy of every seized document.
  • The following documents may not be seized, copied or inspected by the officials:
  • Correspondence in the company with an external lawyer if this refers to investigation proceedings already underway.
  • Documents which the company or the accused employee clearly prepared for the defense in the proceedings already underway.
  • Private documents in so far as they are of no significance as evidence.
  • If the officials want to inspect such privileged documents, only show those parts of the documents which prove their privileged character. If the privileged character of certain documents is contested, request that these documents be placed in sealed envelopes or boxes until a final decision as to the privileged character has been made.

Computer and other objects

  • In general, the officials are also entitled to seize computers and other objects. Moreover, they may make electronic copies of computer files. However, request that computers are left at the company. Grant access to computer files by providing passwords. Important: always make an electronic copy of all computer files which the officials take away.
  • If appropriate, inform the officials that documents – which are privileged or which are not related to the accusations - are saved on the computer which may not be copied. In this case request that the officials do not seize the computer or data storage media, respectively. Further request that the officials only make random checks of folders and files which are not related to the accusations raised.

Random finds

  • The officials may also seize “random finds”. These are objects not related to the subject matter of the current investigation. The officials are not allowed to search systematically for random finds.

List of all evidence seized/affixing seals

  • After conclusion of the inspection you should insist that the officials make a precise list of all evidence seized. If nothing suspicious is found during the inspection ask for written confirmation thereof.
  • The officials are entitled to affix seals to premises, rooms, cupboards and documents, etc., e.g. if an inspection lasts several days. Do not break this seal. Breaking a seal is a criminal offence.

Who may be interviewed by the officials and how?

German Competition Authorities
 

The officials are entitled to request from all employees and representatives of the company explanations of facts and documents that may be related to the purpose of the inspection and to record the answers in writing.
There is an obligation to cooperate in this respect and failure to do so can result in fines. The officials have to explicitly mention this obligation and document doing so in writing.

Presence of lawyers / Procedure of the interview

  • Each interviewee must however bear in mind that they might be held personally liable under German law ! Ask whether you are being questioned as a (potential) suspect or as a witness.
    You only have the right to remain silent with respect to questions on the subject matter if you are questioned as a (potential) suspect. Important: There is an exception to the right to remain silent. You may not remain silent if personal liability is excluded. This requires:
    • that the competition authority has granted a formal commitment not to prosecute AND
    • there is "only" the risk of administrative fine proceedings under competition law (but no risk of criminal prosecution).
  • Ask the officials to confirm that it is not possible for a German authority to take action against you personally. Write down the answer.
  • Only answer questions that are actually related to the inspection. Only answer the questions that are asked. Stick to the facts and do not comment from a legal point of view. Give short and precise answers. Tell the officials if you do not know the answer to a question. Do not make any assumptions.

Presence of lawyers

  • Request that you only be questioned in the presence of the external lawyer.
  • Request that questions be asked only in a formal interview which ensures that questions and answers are recorded. Request a copy of all records made by the officials. Never sign any document before having consulted a lawyer. Sign the records only if they are correct and complete.

External communication

German Competition Authorities
 

  • Do not disclose any details or even the fact that an inspection is taking place to third parties without obtaining permission from the management / legal department. 
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