Case of the Week: Federal Constitutional Court Allows Search of Jones Day’s Offices in Volkswagen Case

BundesverfassungsgerichtA little under a year ago, we reported that the Federal Constitutional Court (Bundesverfassungsgericht) had issued an injunction that stopped the Munich Public Prosecution Office (Staatsanwaltschaft München) to look into and use the documents it seized at the Munich offices of law firm Jones Day. A quick recap of the facts:

Jones Day has acted as counsel to Volkswagen in the diesel emissions matter since September 2015. It carried out an internal investigation, interviewing more than 700 Volkswagen staff, primarily in the context of criminal proceedings against Volkswagen in the United States. In March 2017, the Public Prosecution Office obtained a seizure order for the Jones Day offices in Munich and secured extensive documentation that stemmed from the internal investigation.

In July 2017, the Federal Constitutional Court ordered the Public Prosecution Office (Staatsanwaltschaft) München not to make use of the documents it seized and to have the documents put in custody with the Local Court (Amtsgericht) München, while the Federal Constitutional Court was considering the constitutional complaints (Verfassungsbeschwerden) filed by Volkswagen, Jones Day, and individual Jones Day lawyers. Today, shortly before the expiry of the second extension period, the court has dismissed all constitutional complaints.

When issuing the injuntion in July 2017, the court weighted the applicants’ interest to stop any further review of the documents on the one hand and the interest of the Public Prosecution Office to proceed with its investigation on the other hand. Since the constitutional complaints were not prima facie inadmissible or unfounded, it held that in the event of a successful constitutional complaint, greater damage would be inflicted upon the applicant ifs it allowed the review of the documents to proceed in the meantime, whereas the public prosecution would not be put at risk if its investigation were temporarily stayed. Originally, the Federal Constitutional Court had stopped the use of these documents for six months, and then subsequently extended that period for another six months.

The constitutional complaints of the law firm and of the individual lawyers were dismissed for procedural reasons:

Jones Day itself is not a holder of a fundamental right (Träger von Grundrechten) and therefore does not have standing to bring a constitutional complaint, because it is a non-German legal entity: Jones Day is a partnership under the law of Ohio, hence it is not a holder of fundamental rights as it is not a domestic legal person within the meaning of Article 19 subsec. 3 Basic Law (Grundgesetz, GG).

With respect to the complaints filed by the individual lawyers, the reasoning was similar: they do not have any apparent standing to bring a constitutional complaint.

With respect to the complaint made by Volkswagen, the court held that the German Code of Criminal Procedure (Strafprozessordnung, StPO), in particular Section 110 StPO, was sufficient as a legal basis to justify the interference with Volkswagen’s fundamental rights. Volkswagen can neither invoke its right to informational self-determination (informationelles Selbstbestimmungsrecht) nor would its right to a fair trial be violated, if the public prosecution is allowed to review the files it seized at the Jones Day office.

The Federal Constitutional Court, in anticipation of the international interest in the outcome of this case, has published a fairly extensive press release in English.

So much for now, I plan to report on this more fully in a separate post.

The photo shows a court room at the Bundesverfassungsgericht’s court house in Karlsruhe, courtesy of the court’s web site.

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