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Act on Long-Term Care Leave

 

Act on Long-Term Care Leave – Long-Term Care Leave Act – (Gesetz über die Pflegezeit – Pflegezeitgesetz – PflegeZG)

Section 1 The purpose of the Act

The purpose of the Act is to enable employed persons to take care of close relatives who are in need of long-term care in domestic surroundings, and hence to improve the reconciliation of work and family long-term care.

Section 2 Temporary inability to work

(1) Employed persons shall have the right to remain away from work for up to ten working days if this is necessary to organise long-term care as needed by a close relative in need of long-term care in a long-term care situation occurring on an acute basis or to ensure that long-term care is provided in this time.

(2) Employed persons shall be obliged to inform the employer promptly of their inability to work and of its expected duration. The employee must present to the employer, on request, a medical certificate regarding the need of long-term care of the close relative and the requirement of the measures designated in subs. 1.

(3) The employer shall only be obliged to continue to pay remuneration insofar as such obligation emerges from other statutory provisions or on the basis of an agreement.

Section 3 Long-term care leave

 

(1) Employed persons shall be completely or partly released from performing work if they take care of a close relative in domestic surroundings who is in need of long-term care (long-term care leave). The right in accordance with sentence 1 shall not pertain vis-à-vis employers which have 15 or fewer employed persons as a rule.

(2) The employed persons shall document the close relative’s need of long-term care the by presenting a certificate from the long-term care insurance fund or from the Medical Review Board of Health Insurance. Corresponding documentation shall be provided with regard to persons in need of long-term care who are insured in private obligatory long-term
care insurance.

 

13.12.2010


(3) Anyone wishing to claim long-term care leave must notify the employer thereof in writing at the latest ten working days prior to commencement thereof, declaring at the same time for which period and to what extent the release from work is to be claimed. If only a partial release is claimed, the desired distribution of the working time is also to be stated.

(4) If only partial release is claimed, employers and employed persons shall reach a written agreement regarding the reduction and distribution of the working hours. The employer shall thereby comply with the employed persons’ wishes unless this is opposed by urgent operational reasons.

 

Section 4 Duration of long-term care leave

 

(1) Long-term care leave in accordance with section 3 shall be at most six months (maximum duration) for each close relative in need of long- term care. Long-term care leave claimed for a shorter period can be extended up to the maximum duration if the employer agrees. An extension up to the maximum duration may be demanded if a planned change of carer cannot take place for an important reason. Long-term
care leave shall not be counted towards periods of vocational training.

 

(2) If the close relative is no longer in need of long-term care, or if care of the close relative at home is impossible or unreasonable, long- term care leave shall terminate four weeks after the commencement of
the changed circumstances. The employer shall be informed promptly of

the changed circumstances. In other respects, long-term care leave may only be terminated early if the employer consents.

Section 5 Protection against dismissal

 

(1) The employer may not terminate the employment relationship from notification until the termination of the temporary inability to work
in accordance with section 2 or long-term care leave in accordance with

section 3.

 

(2) Termination may be exceptionally declared permissible in special cases by the highest Land authority responsible for health and safety
at work or by the agency designated thereby. The Federal Government may issue general administrative provisions on this matter with the consent


of the Federal Council.

 

Section 6 Fixed-term contracts

 

(1) If an employee is taken on to stand in for an employed person for the duration of temporary inability to work in accordance with
section 2 or the duration of long-term care leave in accordance with section 3, this shall constitute a de facto reason for the establishment of a fixed-term employment relationship. Over and above
the duration of deployment of a stand-in in accordance with sentence 1, the imposition of a fixed term on necessary familiarisation periods shall be permissible.

(2) The duration of the fixed-term employment contract must be determined or determinable according to the calendar, or must be derivable from the purposes designated in subs. 1.

(3) The employer may terminate the temporary employment contract, adhering to a deadline of two weeks, if long-term care leave in accordance with section 4 subs. 2 sentence 1 ends early. The Act on Protection Against Unfair Dismissal (Kündigungsschutzgesetz) shall not be applied in such cases. Sentence 1 shall not apply insofar as its application is ruled out by contract.

(4) If the number of employees employed is taken as a basis in the framework of statutes under labour law or ordinances, then when calculating this number of employees, those who are temporarily unable to work in accordance with section 2, or who have been released in accordance with section 3, shall not be included insofar as a stand-in has been taken on for them on the basis of subs. 1. This shall not apply if the stand-in is not to be included in the count. Sentences 1
and 2 shall apply mutatis mutandis if the number of posts is taken as a

basis in the context of statutes or ordinances under labour law.

 

Section 7 Definitions

 

(1) Employed persons within the meaning of the present Act shall be deemed to be

1. employees,

2. persons employed for vocational training,

3. persons who because of their economic dependence are to be regarded


as similar to employees: These shall also include those employed in homeworking and those with equivalent status.

(2) Employers within the meaning of the present Act shall be deemed to be natural and legal entities, as well as partnerships with legal capacity employing persons in accordance with subs. 1. The client or intermediary shall replace the employer for persons similar to employees, in particular for those employed in homeworking and those with equivalent status.

(3) Close relatives within the meaning of the present Act shall be deemed to be

1. grandparents, parents, parents-in-law,

2. spouses, civil partners, partners in a marriage-like community, siblings,

3. children, adopted or foster children, the children, adopted or foster children of the spouse or civil partner, children-in-law and grandchildren.

(4) Persons deemed to be in need of long-term care within the meaning of the present Act shall be those who satisfy the prerequisites in accordance with sections 14 and 15 of the Eleventh Book of the Social Code. Persons who are likely to meet the prerequisites in accordance with sections 14 and 15 of the Eleventh Book of the Social Code shall also be deemed to be in need of long-term care within the meaning of section 2.

Section 8 Imperative nature

It shall not be possible to derogate from the provisions contained in the present Act in favour of employed persons.

Act on International Cooperation in Criminal Matters

Full citation: Act on International Cooperation in Criminal Matters of 23 December 1982 (Federal Law Gazette I page 2071), as last amended by Article 1 of the Act of 21 July 2012, Bundesgesetzblatt I 2012, 15661)

Footnote 1)

Translator’s note: Translation of the names of courts, public authorities as well as those of acts of legislation etc. often leads to distortions and misleading simplifications. We have therefore chosen to retain the German expressions in some of the more important cases and to indicate them by the use of italics. The legislation – and for some also translations – can be found at www.gesetze-im-internet.de. The expressions so used are explained in the glossary below, although in some isolated instances explanations were given in situ.

 

Part I.
Scope of Application

 

Section 1
Scope of Application

(1) This Act shall govern the relations with foreign States regarding legal cooperation in criminal matters.

(2) Criminal matters under this Act shall include proceedings resulting from an offence which under German law would constitute a regulatory offence sanctionable by a fine or which pursuant to foreign law is subject to a similar sanction, provided that a court of criminal jurisdiction determines the sentence.

(3) Provisions of international treaties shall take precedence before the provisions of this law to the extent that they have become directly applicable national law.

(4) This Act shall govern the support in criminal proceedings involving a Member State of the European Union.

 

Part II.
Extradition to a Foreign State

 

Section 2
Principle

(1) A foreigner who is being prosecuted or who has been convicted in a foreign State because of an offence punishable in that State may be extra-dited to that foreign State at the request of a competent authority of that State for the purpose of prosecution, or for the enforcement of a penalty or other sanction imposed for that offence.

(2) A foreigner who has been convicted in a foreign State because of an offence punishable in that State may be extradited to another foreign State which has taken over the enforcement, at the request of the competent au-thority of the enforcing State, for the purpose of enforcing the penalty or other sanction imposed for the offence.

(3) Foreigners within the meaning of this Act are persons who are not German citizens pursuant to Article 116 (1) of the Grundgesetz.

 

Section 3
Extradition for the Purpose of Prosecution or Enforcement

(1) Extradition shall not be granted unless the offence is an unlawful act under German law or unless mutatis mutandis the offence would also con-stitute an offence under German law.

(2) Extradition for the purpose of prosecution shall not be granted unless the offence is punishable under German law by a maximum penalty of imprisonment of no less than one year, or unless mutatis mutandis the of-fence would be punishable by such a penalty under German law.

(3) Extradition for the purpose of the enforcement of a sentence shall not be granted unless an extradition for the purpose of prosecution for the offence would be admissible and a custodial penalty is to be enforced. It shall not be granted unless it is to be expected that the period of the custodial penalty still to be served or the sum of the periods of custodial penalties still to be served is not less than four months.

 

Section 4
Extradition for Additional Offences

If an extradition request may be granted, it may additionally be granted for another offence even if with respect to the latter

(1) the conditions under s. 3(2) or (3) do not apply, or

(2) the conditions pursuant to ss. 2 or 3(1) do not apply because the offence is punishable only by a penalty according to s. 1(2).

 

Section 5
Reciprocity

Extradition shall not be granted unless on the basis of assurances given by the requesting State it can be expected that the State would enforce a similar German request.

 

Section 6
Political Offences, Political Prosecution

(1) Extradition for a political offence or for an offence connected with such an offence shall not be granted. It may be granted if the person sought is being prosecuted for or has been convicted of attempted genocide, genocide, aggravated murder or murder or because of his participation in such an offence.

(2) Extradition shall not be granted if there is serious cause to believe that the person sought if extradited would be persecuted or punished be-cause of his race, religion, citizenship, association with a certain social group or his political beliefs, or that his situation would be made more difficult for one of these reasons.

 

Section 7
Military Offences

Extradition because of an offence which consists merely of a breach of military duties shall not be granted.

 

Section 8
Death Penalty

If the offence is punishable by death under the law of the requesting State, extradition shall not be granted unless the requesting State gives as-surances that the death penalty will not be imposed, or if already imposed, not be enforced.

 

Section 9
Concurrent Jurisdiction

If the offence is also subject to German jurisdiction extradition shall not be granted if

(1) a court or other authority in Germany has because of the offence and with respect to the prosecuted person issued a judgment or a decision with corresponding legal effect or has declined to admit the case for trial (s. 204 of the Strafprozessordnung) or has denied a motion to admit a case for trial (s. 174 of the Strafprozessordnung) or has suspended the proceedings after the satisfaction of conditions or directions (s. 153a of the Strafprozessordnung) or has under juvenile criminal law declined prosecution or has closed the proceedings (ss. 45, 47 of the Jugend¬ge¬richtsgesetz), or

(2) the statute of limitations for prosecution or enforcement has lapsed un-der German law or if prosecution or enforcement are barred by a German amnesty law.

 

Section 9a
Extradition and Proceedings before International Criminal Courts

(1) Extradition for an offence shall not be granted if an international criminal court, established according to a legal instrument binding on the Federal Republic of Germany, has pronounced a final judgment or an unappealable decision with corresponding legal effect or has discontinued the criminal proceedings without further possibility of appeal, and if the prosecution by other authorities is prohibited in that case under the establishing instrument. If the court indicated in the 1st sentence above is conducting criminal proceedings for the offence and a decision within the meaning of the 1st sentence above has not yet been rendered upon receipt of an extradition request, the decision on the admissibility of the extradition shall be stayed. Temporary extradition (s. 37) is excluded.

(2) If a foreign State and a court within the meaning of subsection (1) 1st sentence above request the surrender of a person sought for the purpose of prosecution or the enforcement of a sentence (concurrent requests) and if the instrument establishing the court or the implementing provisions contain regulations governing multiple requests, the requests shall be dealt with in accordance with these provisions. If neither the establishing instrument nor the implementing provisions contain regulations on concurrent requests but the establishing instrument grants primacy to the jurisdiction of the court over that of a foreign State, precedence shall be given to the request of the court.

 

Section 10
Extradition Documents

(1) Extradition shall not be granted unless an arrest warrant or a docu-ment with corresponding legal force or an enforceable decision ordering detention from a competent authority of the requesting State as well as a description of the applicable laws have been submitted in relation to the offence. If extradition is requested for the purpose of prosecution of multiple offences, a document from the competent authorities of the requesting State describing the charges made against the person sought shall suffice with regard to additional offences and replace an arrest warrant or a document with corresponding legal force.

(2) If special circumstances justify a review as to whether there are reasonable grounds to believe that the person sought has committed the offence with which he is charged, extradition shall not be admissible unless a description of the facts showing probable cause for the commission of the offence has been submitted.

(3) Extradition for the purpose of enforcing a penalty or other sanction imposed in a third State shall not be granted unless the following docu-ments have been submitted

1. The enforceable decision ordering detention and a document from the third State showing its consent to its enforcement by the State assuming enforcement.

2. A document from a competent authority of the State assuming en-forcement certifying that the penalty or other sanction is enforceable there.

3. A description of the applicable laws.

4. In the case of subsection (2) above, a description within the meaning of this provision.

 

Section 11
Rule of Speciality

(1) Extradition shall not be granted unless the following conditions are met

1. that the person sought will neither be punished in the requesting State without Germany’s consent for any reason which arose prior to his transfer with the exception of that offence for which extradition had been granted, nor be restricted in his personal freedom or be prosecuted through measures which could not also be taken in his absence;

2. that the person sought will not be delivered, transferred or deported to a third State without Germany’s consent; and

3. that the person sought may leave the requesting State after the final conclusion of the proceedings for which extradition had been granted.

(2) The requirement that the requesting State adhere to the rule of spe-ciality must not be waived unless

1. Germany’s consent to prosecute or enforce a penalty or other sanction regarding an additional offence (s. 35) or to deliver, transfer or deport to another foreign State (s. 36) has been given;

2. the person sought has not left the requesting State within one month after the final conclusion of the proceedings for which his extradition had been granted although he had the possibility and the right to do so;

3. the person sought, after having left the requesting State, returned there or was sent back there by a third State. The right of the requesting State to interrogate the person sought for the purpose of preparing a request pursuant to s. 35 shall not be prejudiced.

(3) Early conditional release without an order limiting the freedom of movement of the person sought shall have the same effect as the final conclusion of the proceedings pursuant to subsection (1) no. 3, (2) 1st sentence no. 2 above.

 

Section 12
Granting Extradition

Except in a case covered by s. 41 extradition must not be granted unless a court has ruled it admissible.

 

Section 13
Jurisdiction Ratione Materiae

(1) Except as provided in ss. 21, 22 and 39 (2) the Oberlandesgericht shall have jurisdiction. The decision of the Oberlandesgericht shall not be subject to appeal.

(2) The public prosecution service at the Oberlandesgericht shall prepare the decision regarding extradition and shall execute the extradition order if granted.

 

Section 14
Jurisdiction Ratione Loci

(1) The Oberlandesgericht and the public prosecution service at the Oberlandesgericht in the district where the person sought was arrested for the purpose of extradition or, if the person sought was not apprehended, where he was first located, shall have jurisdiction.

(2) If several persons accused of participation in the same offence, or in connection with it of assistance after the fact, assistance in avoiding prosecution or punishment, or handling stolen goods are to be extradited and are arrested or located for the purposes of extradition in the districts of different Oberlandesgerichte, the Oberlandesgericht or if no Oberlandesgericht has been seized of the matter yet, the public prosecution service at the Oberlandesgericht who has first dealt with the case, shall have jurisdiction.

(3) If the whereabouts of a person are unknown, the Bundesgerichtshof shall decide which Oberlandesgericht has jurisdiction.

 

Section 15
Extradition Detention

(1) Upon receipt of an extradition request extradition detention of a person may be ordered

1. if there is a danger that he may avoid the extradition proceedings or the execution of the extradition; or

2. if based on ascertainable facts there is strong reason to believe that the person would obstruct the investigation of the truth in the foreign pro-ceedings or in the extradition proceedings.

(2) Subsection (1) above shall not apply if it appears ab initio that extradition will not be granted.

 

Section 16
Provisional Extradition Detention

(1) Under the conditions of s. 15 extradition detention may be ordered prior to receipt of the extradition request, if

1. a competent authority of the requesting State so requests; or

2. if there is a strong reason to believe that a foreigner, based on ascertain-able facts, may have committed an offence which could lead to his ex-tradition.

(2) The extradition arrest warrant shall be lifted if the person sought has been in detention from the day of his apprehension or arrest for a period of two months for the purpose of extradition and an extradition request accompanied by the extradition documents has neither been received by the authorities mentioned in s. 74 nor by any other authorities competent to receive the request and documents. If a non-European State has requested the order for provisional extradition detention, the period shall be three months.

(3) After receipt of the extradition request and extradition documents, the Oberlandesgericht shall decide without undue delay whether the detention is to be upheld.

 

Section 17
Extradition Arrest Warrant

(1) The provisional extradition detention and the extradition detention shall be ordered by the Oberlandesgericht in a written arrest warrant (extradition arrest warrant).

(2) The extradition arrest warrant must mention

1. the person sought;

2. the State to which, depending on the circumstances of the case, he is to be extradited;

3. the offence with which the person sought is charged;

4. the request or in the case of s. 16(1) no. 2 the facts which show that there is strong reason to believe that the person sought has committed an offence which may lead to his extradition and

5. the reason for the arrest and the facts supporting it.

 

Section 18
Measures to Determine the Whereabouts of the Person Sought

If an extradition request has been submitted and the location of the person sought is unknown, measures necessary for determining the where-abouts and apprehension of the person sought may be taken. No special request is required for specific measures to be ordered. The public prosecution service at the Oberlandesgericht shall have jurisdiction to issue and advertise an order for his apprehension. The provisions of chapter 9(a) of the Strafprozessordnung shall apply mutatis mutandis.

 

Section 19
Provisional Arrest

If the conditions for an extradition arrest warrant are fulfilled the public prosecution service and the police may provisionally arrest the person sought. Under the requirements of s. 127(1) no. 1 of the Strafprozessordnung everyone shall have the right to make a citizen’s arrest.

 

Section 20
Notification

(1) Once the person sought is provisionally arrested he must be informed of the reason for his arrest.

(2) If an extradition arrest warrant has been issued the person sought must immediately be informed about it. The person sought shall receive a copy.

 

Section 21
Procedure after Arrest Pursuant to an Extradition Arrest Warrant

(1) A person sought who is apprehended on the basis of an extradition arrest warrant shall be brought without delay, but no later than on the day following his apprehension, before a judge of the nearest Amtsgericht.

(2) The judge at the Amtsgericht shall examine the person sought immediately after he is brought before him but no later than on the day following his apprehension , about his personal circumstances and especially his citizenship. He shall advise him that he may at any time during the proceedings have the assistance of counsel (s. 40) and that he is free to make or not to make any statements regarding the charges made against him or to remain silent. He shall ask him whether and if so on what grounds he wishes to object to the extradition, to the extradition arrest warrant or to its execution. In the case of s. 16(1) no. 2 this examination shall also include the object of the charges. In all other cases, those statements which the person sought makes voluntarily in that context are to be entered into the court record.

(3) If the examination shows that

1. the detainee is not the person identified in the extradition arrest war-rant;

2. the extradition arrest warrant has been rescinded; or

3. the execution of the extradition arrest warrant has been stayed,

the judge at the Amtsgericht shall order his release.

(4) If the extradition arrest warrant has been rescinded or its execution stayed, the judge at the Amtsgericht shall order the person sought to be detained pending the decision by the Oberlandesgericht, if

1. the requirements for a new extradition arrest warrant on the same charges exist or

2. reasons for ordering the execution of the extradition arrest warrant exist.

The public prosecution service at the Oberlandesgericht shall without un-due delay request a decision by the Oberlandesgericht.

(5) If the person sought raises other objections to the extradition arrest warrant or to its execution which are not manifestly unfounded, or if the judge at the Amtsgericht has reservations against the continuation of the detention, he shall immediately inform the public prosecution service at the Oberlandesgericht in the most expeditious manner. The public prosecution service at the Oberlandesgericht shall without undue delay request a decision by the Oberlandesgericht.

(6) If the person sought does not raise any objections to the extradition, the judge at the Amtsgericht shall advise him about the possibility of a simplified extradition and its legal consequences (s. 41). He shall then record his statements.

(7) The decision of the judge at the Amtsgericht shall not be subject to appeal. The public prosecution service at the Oberlandesgericht may order the release of the person sought.

 

Section 22
Procedure after Arrest

(1) A person sought who is arrested shall be brought without delay, but no later than the day following his arrest, before the judge of the nearest Amtsgericht.

(2) The judge at the Amtsgericht shall examine the person sought immediately after he is brought before him, but no later than on the day following his apprehension, about his personal circumstances and especially his citizenship. The judge at the Amtsgericht shall advise him that he may at any time during the proceedings have the assistance of counsel (s. 40) and that he is free to make any statements regarding the charges made against him, or to remain silent. He shall ask him whether and if so on what grounds he wishes to object to the extradition or to his arrest. S. 21(2) 4th sentence shall apply mutatis mutandis.

(3) If the examination shows that the detainee is not the person to whom the request or the facts within the meaning of s. 17(2) no. 4 refer, the judge shall order his release. Otherwise, the judge at the Amtsgerich shall order that the person sought be detained pending the decision by the Oberlandesgericht. S. 21(4) 2nd sentence, (6) and (7) shall apply mutatis mutandis.

 

Section 23
Decision on Objections Raised by the Person Sought

The Oberlandesgericht shall rule on any objections raised by the person sought against the extradition arrest warrant or against its execution.

 

Section 24
Repeal of Extradition Arrest Warrant

(1) The extradition arrest warrant shall be repealed as soon as the requirements for the provisional extradition detention or for the extradition detention no longer exist or a decision denying extradition has been issued.

(2) The extradition arrest warrant shall also be repealed if the public prosecution service at the Oberlandesgericht applies for its repeal. Simultaneously with the application, the public prosecution service shall order the release of the person sought.

 

Section 25
Stay of Execution of Extradition Arrest Warrant

(1) The Oberlandesgericht may stay the execution of the extradition arrest warrant if less intrusive measures will ensure that the purpose of the provisional extradition detention or of the extradition detention is served.

(2) S. 116(1) 2nd sentence, (4), ss. 116 a, 123 and 124(1), (2) 1st sentence, (3) of the Strafprozessordnung as well as s. 72(1), (4) 1st sentence of the Jugendgerichtsgesetz shall apply mutatis mutandis.

 

Section 26
Review of Detention

(1) If the person sought is held in extradition detention, the Oberland-esgericht shall decide on its continuation provided the person sought has been detained for a total of two months from the day of his apprehension or his arrest or the day of the last decision concerning the continuation of the detention for the purpose of extradition. The review shall be repeated every two months. The Oberlandesgericht may order that the review take place within shorter periods of time.

(2) If the person sought is provisionally detained in temporary placement in an approved school (s. 71(2) of the Jugendgerichtsgesetz), subsec-tion (1) above shall apply mutatis mutandis.

 

Section 27
Execution of Detention

(1) The provisions on the execution of custody pending trial and s. 119 of the Strafprozessordnung shall apply mutatis mutandis to provisional extradition detention, to extradition detention and to detention pursuant to an order issued by a judge at the Amtsgericht with regard to the execution of detention pending further investigation.

(2) The public prosecution service at the Oberlandesgericht shall designate the facility in which the person sought is to be kept.

(3) The presiding judge of the appropriate senate of the Oberlandesgericht shall issue the necessary judicial orders.

 

Section 28
Examination of the Person Sought

(1) Upon receipt of the extradition request, the public prosecution service at the Oberlandesgericht shall apply to the Amtsgericht in whose district the person sought is located for his examination.

(2) The judge at the Amtsgericht shall examine the person sought about his personal circumstances and especially his citizenship. He shall advise him that he may at any time during the proceedings have assistance of counsel (s. 40) and that he is free to make any statements regarding the charges made against him or to remain silent. He shall ask him whether and if so on what grounds he wishes to object to the extradition. The per-son sought shall be interrogated with regard to the object of the charges only if the public prosecution service at the Oberlandesgericht has applied for it. Other than that, the statements concerning the subject matter of the charges volunteered by the person sought shall be entered into the court record.

(3) If the person sought does not raise any objections to the extradition, the judge at the Amtsgericht shall advise him about the possibility of a simplified extradition and its legal consequences (s. 41) and record any declarations of the person sought.

 

Section 29
Request for a Decision Concerning the Admissibility of Extradition

(1) If the person sought does not consent to the simplified extradition (s. 41) the public prosecution service at the Oberlandesgericht shall apply to the Oberlandesgericht for a decision on whether extradition is admissible.

(2) The public prosecution service at the Oberlandesgericht may also apply to the Oberlandesgericht for such a decision if the person sought has consented to a simplified extradition.

 

Section 30
Preparation of Decision

(1) If the extradition documents do not suffice for making a decision about the admissibility of the extradition the Oberlandesgericht shall render a decision only after the requesting State has been given an opportunity to submit additional documents. A deadline for the submission of these docu¬ments may be set.

(2) The Oberlandesgericht may examine the person sought. It may hear other evidence regarding the admissibility of the extradition. In the case of s. 10(2) the evidence regarding the admissibility of the extradition shall also extend to whether there is sufficient cause to believe that the person sought is guilty of the offence with which he is charged. The Oberlandesgericht shall determine the manner in which the evidence is presented as well as its extent, without being bound by applications, waivers or prior decisions.

(3) The Oberlandesgericht may hold an oral hearing.

 

Section 31
Oral Hearing

(1) The public prosecution service at the Oberlandesgericht, the person sought and his counsel (s. 40) shall be advised of the time and place of the oral hearing. A representative of the public prosecution service at the Oberlandesgericht must be present at the oral hearing.

(2) If the person sought is in custody he is to be brought before the court unless he has waived his right to be present during the hearing or un¬less reasons of long distance, illness or other insurmountable obstacles prevent his attendance. If the person sought is not brought before the judge the oral hearing counsel (s. 40) must represent him during the oral hearing. In this case counsel shall be appointed for his defence unless he is represented by counsel of his choice.

(3) If the person sought is not in custody the Oberlandesgericht may order his personal attendance. If the person sought has been properly summoned and does not attend and if his absence has not been sufficiently excused the Oberlandesgericht may order him to be brought before the court.

(4) The parties present at the oral hearing shall be heard. A record of the hearing shall be made.

 

Section 32
Decision on Admissibility of Extradition

The decision regarding the admissibility of the extradition must contain the court’s reasons. The public prosecution service at the Oberlandesgericht, the person sought and his counsel (s. 40) shall be notified of the decision. The person sought shall receive a copy.

 

Section 33
Reconsideration of Decision on Admissibility of Extradition

(1) If after the decision by the Oberlandesgericht regarding the admissibility of the extradition, circumstances arise which may justify a different decision, the Oberlandesgericht shall propio motu, on the application of the public prosecution service at the Oberlandesgericht or of the person sought, review its decision.

(2) If after the decision by the Oberlandesgericht circumstances become known which may justify a different decision on the admissibility, the Oberlandesgericht may render a new decision.

(3) S. 30(2) and (3), and ss. 31 and 32 shall apply mutatis mutandis.

(4) The Oberlandesgericht may order a stay of the extradition.

 

Section 34
Detention for the Purpose of Safeguarding Extradition

(1) If, after the granting of extradition the person sought is not in custody and if the extradition cannot be ensured in another manner the Oberland-esgericht shall order the arrest for the purpose of executing extradition by means of a written arrest warrant, unless the execution of an existing extradition arrest warrant (s. 17) can be ordered.

(2) The arrest order shall contain information concerning

1. the person sought,

2. the decision granting extradition and

3. the reason for the detention and the facts on which it is based.

(3) Ss. 18 to 20 and 23 to 27 shall apply mutatis mutandis.

 

Section 35
Extension of Scope of Granted Extradition

(1) If the extradition has been carried out and the requesting State to which the person sought has been extradited requests, because of an additional offence, the consent for the prosecution or for the enforcement of a sentence or of any other sanction, consent may be given, provided it has been demonstrated that

1. the person sought had the opportunity to state his views regarding the request and the Oberlandesgericht had decided that extradition for the offence would have been admissible or

2. the person sought has given his consent on the record of a court of the requesting State to the prosecution or to the enforcement of the sentence or of any other sanction and if extradition for the offence would be admissible.

If the consent to prosecute is requested, then instead of an arrest warrant or of a document with corresponding legal force (s. 10(1) 1st sentence) the document of a competent authority of the requesting State, denoting the offence with which the person sought has been charged, shall suffice.

(2) With regard to the procedure s. 29, with the proviso that the consent of the person sought to the simplified extradition is substituted by his con-sent in the sense of subsection (1) 1st sentence no. 2 above, as well as ss. 30(1) and (2) 2nd to 4th sentences (3), s. 31(1) and (4), and ss. 32, 33(1) and (2) shall apply mutatis mutandis. Pursuant to subsection (1) 1st sentence no. 1 above the Oberlandesgericht which had jurisdiction in the extradition proceedings for the decision regarding the admissibility of the extradition shall also have jurisdiction for this decision.

 

Section 36
Transfer to a Third State

(1) If the extradition has been carried out and if a competent authority of a foreign State requests, on the basis of the offence for which the extra-dition had been granted or for an additional offence, consent to the transfer to a third State, to the surrender of the person sought for the purpose of enforcing a sentence or any other sanction or his deportation, s. 35(1) 1st sentence, (2) shall apply mutatis mutandis if extradition for the offence to that State to which the person sought is to be delivered or surrendered would be admissible,

(2) If the extradition has not yet been carried out, consent may be given upon a request as described in subsection (1) above, provided that because of the nature of the offence extradition to the State to which the person extradited is to be delivered or surrendered would be admissible. With regard to the proceedings, ss. 28 to 33 shall apply mutatis mutandis.

 

Section 37
Temporary Extradition

(1) If the extradition is stayed because criminal proceedings against the person sought are pending on German territory, or because a prison sen-tence or a custodial measure of rehabilitation and incapacitation is to be enforced, the person sought may temporarily be extradited, provided that a competent authority of the requesting State makes such a request and gives an assurance that he will be returned if requested or by a certain date.

(2) The return of the person sought may be waived.

(3) If in the proceedings which caused the stay of the extradition a prison sentence or a fine is imposed, the time already served by the person sought in the requesting State until his return or until the waiver of his re-turn shall be credited against such penalty. If the extradition was stayed because a prison sentence was being enforced against the person sought, the 1st sentence above shall apply mutatis mutandis.

(4) The authority responsible under subsection (3) above for deciding on the credit shall determine its measure in its discretion and after hearing the public prosecution service at the Oberlandesgericht. It may order that no credit or only partial credit be given,

1. if the time served in the requesting State was credited completely or partly against a sentence issued or to be enforced there or against any other sanction; or

2. if in view of the conduct of the person sought after his transfer such credit is not justified.

 

Section 38
Handing Over of Objects in Extradition Proceedings

(1) In connection with an extradition the following objects may be handed over to the requesting State without a separate request:

1. Objects which may serve as evidence in the foreign proceedings or

2. objects which the person sought or a participant to the offence have ob-tained through the offence for which extradition has been granted or as compensation for such objects.

(2) The handing over shall not be admitted unless rights of third parties are not infringed, and be admitted under the condition that objects handed over will be returned immediately upon request.

(3) Under the conditions specified in subsections (1) and (2) above property may be handed over even if the extradition itself cannot be carried out for factual reasons.

(4) The Oberlandesgericht shall rule on the admissibility of the handing over upon objection by the person sought, upon application by the public prosecution service at the Oberlandesgericht or upon application by any person who claims that his rights would be infringed by the handing over. If the Oberlandesgericht allows the handing over it may make a costs order for the costs arising to the State against the person who applied for the Oberlandesgericht decision. The handing over may not be granted if the Oberlandesgericht has declared it inadmissible.

 

Section 39
Search and Seizure

(1) Objects which may be subject to being handed over to a foreign State may be seized or otherwise secured even prior to the receipt of the extradition request. A search may be conducted for this purpose.

(2) If no Oberlandesgericht has been seized of the extradition proceedings the Amtsgericht in whose district these actions are to be performed shall have jurisdiction to order the search and seizure.

(3) In cases of emergency, the public prosecution service or its agents (s. 152 Gerichtsverfassungsgesetz) may order the search and seizure.

 

Section 40
Assistance of Counsel

(1) The person sought may at any time during the proceedings have the assistance of counsel.

(2) If the person sought does not already have privately appointed counsel, counsel shall be assigned to him

1. if due to the factual or legal complexity of the case assistance appears appropriate, in proceedings according to paragraph 2 of Part VIII, espe-cially in cases of doubt whether the conditions of ss. 80 and 81 no. 4 have been fulfilled,

2. if it is apparent that the person sought cannot himself adequately protect his rights or

3. if the person sought is under 18 years of age.

(3) The provisions of Chapter 11 of Book 1 of the Strafprozessordnung with the exception of ss. 140, 141(1) to (3) and s. 142(2) shall apply mutatis mutandis.

 

Section 41
Simplified Extradition

(1) Upon the request of a competent authority of a foreign State for extradition or arrest for the purpose of extradition, the extradition of a per-son sought against whom an extradition arrest warrant has been issued may be granted without formal extradition proceedings provided the person sought, after being advised of his rights, consents to the simplified extradi-tion and his consent has been entered into the court record.

(2) In the case of subsection (1) above the requirements of s. 11 need not be complied with if the person sought after being advised of his rights consents and his consent has been entered into the court record.

(3) The consent cannot be revoked.

(4) On the application by the public prosecution service at the Oberlandesgericht the judge at the Amtsgericht shall advise the person sought of the possibility of simplified extradition and its legal consequences (subsections (1) to (3) above) and record his declaration. The judge at the Amts¬gericht in whose district the person sought is located shall have jurisdiction.

 

Section 42
Preliminary Rulings on Legal Issues by the Bundesgerichtshof

(1) If the Oberlandesgericht deems a ruling by the Bundesgerichtshof necessary for the clarification of a legal issue of fundamental significance or if it wishes to deviate from a decision of the Bundesgerichtshof or from a decision taken after the coming into force of this Act by another Oberlandesgericht concerning a legal issue in the context of extradition, it shall request the decision of the Bundesgerichtshof concerning that legal issue by means of a reasoned decision.

(2) The decision of the Bundesgerichtshof shall also be requested if either the Generalbundesanwalt or the public prosecution service at the Oberlandesge¬richt make such a request for the clarification of a legal issue.

(3) The Bundesgerichtshof shall give the person sought an opportunity to be heard. The decision shall be made without an oral hearing.

 

Part III.
Transit

 

Section 43
Admissibility of Transit

(1) A foreigner who is being prosecuted in a foreign State because of an offence punishable there or who has been convicted there may, for the purpose of prosecution or enforcement of a penalty imposed on him for that offence or of any other sanction, at the request of a competent authority of that State, transit through German territory.

(2) A foreigner who has been convicted in a foreign State because of

an offence punishable there, may, at the request of a competent authority of another foreign State which has taken over the enforcement, transit through German territory for the purpose of enforcement of a penalty im-posed on him for that offence or of any other sanction.

(3) Transit shall not be granted unless

1. the offence on which the request is based is punishable under German law by imprisonment or mutatis mutandis would be punishable by imprisonment, and unless

2. for the offence on which the request is based,

(a) in the case of subsection (1) above, the documents described in s. 10(1) 1st sentence, or

(b) in the case of subsection (2) above, the documents described in s. 10(3) nos. 1 to 3 have been submitted.

If transit is requested for several offences the requirements of the 1st sen-tence above need only be complied with for one of the offences on which the request is based.

(4) For the transit ss. 6 to 8 shall apply mutatis mutandis.

 

Section 44
Jurisdiction

(1) The judicial decisions shall be issued by the Oberlandesgericht. S. 13(1) 2nd sentence and (2) shall apply mutatis mutandis.

(2) Jurisdiction ratione loci shall lie

1. in the case of transit by land or by sea, with the Oberlandesgericht in the district where the person is scheduled to enter German territory;

2. in the case of transit by air, with the Oberlandesgericht in the district where the aircraft will make its first stop.

(3) If jurisdiction pursuant to subsection (2) no. 2 above cannot be estab-lished, the Oberlandesgericht in Frankfurt am Main shall have jurisdic-

tion.

 

Section 45
Transit Proceedings

(1) If transit appears admissible the person sought shall be held in deten-tion to ensure transit.

(2) Detention shall be ordered by means of a written arrest warrant (transit arrest warrant) by the Oberlandesgericht. S. 17(2) and s. 30(1) shall apply mutatis mutandis.

(3) Transit may not be granted unless a transit arrest warrant has been issued.

(4) Immediately upon his arrival on German territory the person sought shall be notified of the transit arrest warrant. He shall receive a copy.

(5) If it is unlikely that transit can be completed before the end of the day following entry on German territory the person sought shall be brought immediately, but no later than on the day after his arrival on Ger¬man territory, before the judge of the nearest Amtsgericht. The judge at the Amtsgericht shall examine the person sought about his personal circumstances and especially his citizenship. He shall advise him that he may at any time during the proceedings have the assistance of counsel (s. 40) and that he is free to make statements regarding the charges made against him or to remain silent. The judge shall ask him whether and if so on what grounds he wishes to object to the transit arrest warrant or to the admission of transit. If the person sought raises objections which are not manifestly unfounded or if the judge at the Amtsgericht has reservations against the continuation of the detention or against the admissibility of the passage in transit, he shall advise the public prosecution service at the Oberlandesgericht immediately and in the most expeditious manner. The public prosecution service shall without undue delay request a decision from the Oberlandesgericht.

(6) Ss. 24, 27, 33(1), (2) and (4) and ss. 40 and 42 shall apply mutatis mutandis, as well as s. 26(1) with the proviso that for the period of two months shall be substituted a period of one month.

(7) Objects received in the course of transit may without separate re-quest be handed over at the same time as the person sought.

 

Section 46
Transit in Case of Temporary Extradition

(1) If transit has been granted the person sought may at the request of a competent authority of the requesting State be transported in transit through German territory for the purpose of executing a temporary extra-dition and a subsequent return.

(2) In the case of subsection (1) above the transit arrest warrant shall be extended to the additional instances of transit.

 

Section 47
Unscheduled Landing in Case of Transport by Air

(1) If a competent authority of a foreign State presents a notification that it will, for the purpose of extradition by air, have a foreigner transported by air through German airspace without landing, and if the necessary docu-ments pursuant to s. 43(3) 1st sentence no. 2 and 2nd sentence have been submitted, such notification shall in the case of an unscheduled landing be treated like a request for transit.

(2) If the requirements of subsection (1) above are fulfilled the public prosecution service and the police shall be authorised to arrest the transported person.

(3) The person sought shall be brought without delay, but no later than on the day following his apprehension, before the judge of the nearest Amtsgericht. The judge at the Amtsgericht shall examine him about his personal circumstances and especially his citizenship. He shall advise him that at any time during the proceedings he may have the assistance of counsel (s. 40) and that he is free to make any statements regarding the charges made against him or to remain silent. He shall ask whether and if so on what grounds he wishes to object to the transit or his detention.

(4) If the examination shows that the person presented is not the person described in the notification, the judge at the Amtsgericht shall order his release. Otherwise, the judge at the Amtsgericht shall order that the person sought be detained pending the decision of the Oberlandesgericht. S. 21(4) 2nd sentence and (7) shall apply mutatis mutandis.

(5) The transit arrest warrant may be issued prior to receipt of the docu-ments described in s. 43(3) 1st sentence no. 2. The person sought shall be notified immediately. He shall receive a copy.

(6) The transit arrest warrant shall be repealed if the person sought has for the purpose of transit been held in detention from the day of his arrest for a total of 45 days, and the transit documents have not been received. If a non-European State has presented notification of the passage in transit pursuant to subsection (1) above the period shall be two months.

(7) Upon receipt of the documents, the public prosecution service at the Oberlandesgericht shall apply for the examination of the person sought by the judge at the Amtsgericht in whose district the person sought is located. S. 45(5) 2nd to 4th sentences shall apply mutatis mutandis. The public prosecution service at the Oberlandesgericht shall request the decision of the Oberlandesgericht as to whether the transit arrest warrant is to be upheld.

(8) Transit may be granted only if the Oberlandesgericht has upheld the transit arrest warrant.

 

Part IV.
Assistance through Enforcement of Foreign Judgments

 

Section 48
Principle

For criminal proceedings assistance may be provided through enforce-ment of a penalty or any other sanction imposed with final and binding force in a foreign country. Part IV of this Law shall also apply to requests for the enforcement of an order for confiscation or deprivation, made by a court exercising other than criminal jurisdiction in the requesting State if the order is based on a punishable offence.

 

Section 49
Additional Prerequisites for Admissibility of Assistance

(1) The enforcement shall not be admissible unless

1. a competent authority of the foreign State submitting the complete, le-gally binding and enforceable decision has requested it;

2. in the proceedings on which the foreign decision is based the convicted person had an opportunity to be heard and to present an adequate de-fence, and the sanction has been imposed by an independent court or, in the case of a fine, was imposed by an authority whose decision may be appealed to an independent court;

3. under German law notwithstanding possible procedural obstacles and, if necessary mutatis mutandis, a criminal penalty, measure of rehabilitation and incapacitation or a regulatory fine could have been imposed in respect of the offence on which the foreign judgment is based or, where enforcement of an order for confiscation or deprivation is requested, such an order could have been made, notwithstanding section 73(1) 2nd sentence of the Strafgesetzbuch;

4. a decision of the kind mentioned in s. 9 no. 1 has been made, unless the enforcement of an order for confiscation or deprivation is requested and such an order could be made independently under s. 76a of the Strafge-setzbuch;

5. the statute of limitations for the enforcement under German law has not lapsed or would not have lapsed mutatis mutandis; the above notwithstanding the enforcement of an order for confiscation or deprivation shall be admissible if

a) German criminal law does not apply to the offence on which the or-der is based or

b) such an order could be made mutatis mutandis by analogous applica-tion of s. 76a(2) no. 1 of the Strafgesetzbuch.

(2) If a custodial sanction has been imposed in a foreign State and the convicted person is located there, enforcement shall not be admitted unless the convicted person, after having been advised, consented and his consent was entered into the record of a court in the requesting State or the consent was declared before a German consular career official empowered to certify legally relevant declarations. The consent cannot be revoked.

(3) If German law does not recognise any type of sanction corresponding to the sanction imposed in the foreign State, enforcement shall not be admissible.

(4) If in the foreign order for confiscation or deprivation a decision has been made concerning the rights of third parties, it shall be binding unless

a) the third party had not been given sufficient opportunity to defend their rights, or

b) the decision is incompatible with a German civil court decision issued in the same matter or

c) the decision relates to third party rights to real estate located on German territory or to a real estate rights; third party rights shall also include priority notices.

(5) Orders depriving of or suspending a right, or ordering prohibitions or the loss of a capacity, shall extend to German territory if so provided for in an international agreement approved by law in accordance with Arti-cle 59(2) of the Grundgesetz.

 

Section 50
Jurisdiction Ratione Materiae

Jurisdiction regarding the enforceability of a foreign decision shall lie with the Landgericht. The public prosecution service at the Landgericht shall prepare the decision.

 

Section 51
Jurisdiction ratione loci

(1) Jurisdiction for the decision regarding the enforceability of a foreign decision shall be determined by the place of residence of the convicted person.

(2) If the convicted person does not have a permanent place of residence on German territory, jurisdiction shall be determined by the place where he normally lives or, if such a place is not known, by his last place of residence, otherwise by the place where he was apprehended, or, if he has not been apprehended, where he was first located. If the request relates solely to enforcement of an order for confiscation or deprivation or a fine or a regulatory fine, jurisdiction shall lie with the court in whose district the object described in the order for confiscation or deprivation is located, or, if no particular object is specified in the order for confiscation or deprivation or if a fine or regulatory fine is to be enforced, jurisdiction shall lie with the court in whose district the convicted person’s assets are located. If the convicted person has assets in the districts of several Landgerichte jurisdiction shall be determined by which Landgericht was first seized of the matter or, if no Landgericht has been seized of the matter yet, which public prosecution service at a Landgericht was first seized of it.

(3) If jurisdiction cannot be otherwise established, it shall be determined by the seat of the Bundesregierung.

 

Section 52
Preparation of Decision

(1) If the documents submitted are insufficient to permit a determination as to enforcement, the court shall issue its decision only after the re-questing State has been given an opportunity to submit additional docu-ments.

(2) S. 30(1) 2nd sentence, (2) 2nd and 4th sentences, (3) and s. 31(1) and (4) shall apply mutatis mutandis. If the convicted person is on German territory, s. 30(2) 1st sentence and s. 31(2) and (3) shall also apply mutatis mutandis.

(3) In respect of requests for enforcement of foreign orders for confis-cation or deprivation, the convicted person as well as third parties who could, depending on the circumstances of the case, claim rights to the ob-ject, must be given an opportunity to be heard prior to the decision.

 

Section 53
Assistance of Counsel

(1) In respect of requests for enforcement of foreign orders for confiscation or deprivation, the convicted person as well as third parties who could, depending on the circumstances of the case, claim rights to the object, may avail themselves of the assistance of counsel at any stage of the proceedings.

(2) If the convicted person did not privately appoint counsel, he shall be assigned counsel if

1. because of the complexity of the factual and legal situation, the assis-tance of counsel appears necessary,

2. it is apparent that the convicted person cannot himself adequately pro-tect his rights or

3. the convicted person is in detention outside German territory and there are doubts whether he himself can adequately protect his rights.

(3) The provisions of Chapter 11 of Book 1 of the Strafprozessordnung with the exception of ss. 140, 141(1) to (3) and s. 142(2) shall apply mutatis mutandis.

 

Section 54
Conversion of Foreign Sentence

(1) To the extent that enforcement of the foreign judgment is admissible, it shall be declared enforceable. The penalty imposed shall at the same time be converted into a penalty which under German law corresponds most closely to it. The extent of the penalty to be imposed shall be deter-mined by the foreign decision; it must, however, not exceed the maximum of the penalty which could be imposed for the offence under German law. This maximum shall be substituted with a maximum term of two years’ imprisonment if under German law the offence is punishable

1. by a term of imprisonment not exceeding two years or

2. sanctionable as a regulatory offence by a regulatory fine yet the foreign penalty must be converted into a term of imprisonment pursuant to the 2nd sentence above.

(2) In the case of a fine the foreign currency amount shall be converted into Euros at the exchange rate applicable on the day of the foreign deci-sion.

(2a) Where an order for confiscation or deprivation concerns a specific object the declaration of enforceability shall refer to that object. Instead of a specific object the declaration can also refer to the monetary amount equal to the value of the object if

1. the foreign State has made a request to that effect and

2. the conditions of s. 76 of the Strafgesetzbuch are fulfilled mutatis mutandis.

If the order is defined in terms of monetary value, subsection (2) above shall apply mutatis mutandis.

(3) When converting a sentence imposed against a juvenile or a young adult the provisions of the Jugendgerichtsgesetz shall apply mutatis mutandis.

(4) Any part of the sentence previously served in the requesting State or a third State, and any detention served pursuant to s. 58, shall be credited towards the sentence to be determined. If this credit was not taken into account at the time of the decision about enforcement of the judgment or if the conditions for a credit arise at a later date, the decision shall be amended.

 

Section 55
Decision Concerning Enforceability

(1) The Landgericht shall decide on the enforceability by order. To the extent that the foreign decision is declared enforceable, that finding and the type and extent of the penalty to be enforced shall be stated in the or-der.

(2) The public prosecution service at the Landgericht, the convicted person and third parties who when a request for enforcement of an order for confiscation or deprivation was made have claimed rights to the object, may appeal the order within one week . For the subsequent procedure, s. 42 shall apply mutatis mutandis.

(3) Copies of the final orders entered by the court shall be passed on to the Bundeszentralregister. This shall not apply if the penalty imposed in the foreign judgment has been converted into a fine or if the final order related solely to an order for confiscation or deprivation. If the foreign decision is to be entered in the Bundeszentralregister the decision regarding the enforce-ability is to be noted in the entry. Ss. 12 to 16 of the Bundeszentralregistergesetz shall apply mutatis mutandis.

 

Section 56
Granting Assistance

(1) Legal assistance shall not be granted unless the foreign decision has been declared enforceable.

(2) The decision regarding legal assistance shall be notified to the Bun-deszentralregister. S. 55(3) 2nd to 4th sentences shall apply mutatis mutan-dis.

(3) If upon request the enforcement of a fine or a sentence of impris-onment is granted, the offence may no longer be prosecuted under German law.

(4) The granting of a request for legal assistance seeking the enforcement of an order for confiscation or deprivation shall be equivalent to a final order and decision within the meaning of ss. 73, 74 of the Strafgesetzbuch. S. 493 of the Strafprozessordnung shall apply mutatis mutandis.

 

Section 56a
Compensation of the Injured Party

(1) If upon the request of another State a foreign decision ordering confiscation was executed into the assets of the convicted person within German territory, the party injured by the offence on which the foreign decision is based shall receive compensation from public funds if

1. a German or foreign court has issued an enforceable decision awarding damages against the convicted person or if the latter has declared his obligation to pay to the injured person in an enforceable document (title),

2. the title is enforceable within German territory,

3. the injured person shows that the title covers the damages arising from the offence on which the decision for confiscation is based and

4. the injured person shows that he could not obtain full satisfaction of his claim from the enforcement of the title.

Compensation shall be awarded in exchange for cession of the claim for damages to an equal amount.

(2) Compensation shall not be granted if the rights of the injured person under s. 73e(1) 2nd sentence continue to exist.

(3) The amount of compensation shall be limited by the remaining revenue accruing to German public funds from the enforcement of the confiscation order into the domestic assets. If several injured parties have filed an application under subsection (1) above, their compensation shall be determined by the sequence of their applications. If several applications are filed on the same day and the revenue is insufficient to satisfy these persons they shall receive compensation pro rata according to the amount of the claims for damages.

(4) The application shall be filed with the competent enforcement au-thority. It may be denied if six months have passed since the end of the en-forcement proceedings related to the asset from which compensation could be paid. The enforcement authority may set appropriate time limits in which the injured person must adduce the necessary documentation.

(5) The decision of the enforcement authority may be reviewed in the civil courts.

 

Section 56b
Agreement on Disposal, Return and Distribution of Seized Assets

(1) The authority in charge of granting assistance may enter into an ad hoc agreement with the competent authority of the requesting State about the disposal, return or distribution of the assets resulting from the enforce-ment of an order for confiscation or deprivation if reciprocity is assured.

(2) Agreements relating to objects within the meaning of ss. 1 and 10 of the Gesetz zum Schutz deutschen Kulturgutes gegen Abwanderung require the consent of the Representative of the Bundesregierung for Cultural and Media Affairs. If the consent is refused, s. 16(3) 2nd sentence of the Gesetz zum Schutz deutschen Kulturgutes gegen Abwanderung* shall apply mutatis mutandis.

 

Section 57
Enforcement

(1) Upon legal assistance having been granted, the prosecution service having jurisdiction under s. 50(2) shall execute the enforcement as enforcement authority. The jurisdiction for the enforcement of a sanction which was converted into a sanction admissible under the Jugendgerichtsgesetz shall be determined by the provisions of the Jugendgerichtsgesetz.

(2) The enforcement of the remainder of a custodial sanction may be sus-pended. The provisions of the Strafgesetzbuch shall apply mutatis mutandis.

(3) The decision under subsection (2) above and any subsequent decision relating to suspension shall lie with the court having jurisdiction under s. 462a(1) 1st and 2nd sentences of the Strafprozessordnung, or, if its juris-diction is not established under this provision, with the court having jurisdiction under s. 50.

(4) The enforcement of a converted sanction shall follow, mutatis mutan-dis, the provisions applicable to a similar sanction if issued in the Federal Republic of Germany.

(5) The enforcement related to a monetary value shall cease or be re-stricted if the convicted person adduces a document which shows that the amount was enforced in another State or if the enforcing authority obtains knowledge thereof in another manner.

(6) Enforcement shall not be executed if a competent authority of the requesting State provides notice that the conditions for enforcement no longer exist.

(7) If a foreign order for confiscation was enforced and there is reason to believe from that order that a person identifiable by name might have a claim for damages against the convicted person arising from the offence on which the order was based, that person must without undue delay be informed by the enforcing authority by simple letter to the last known ad-dress, about his rights under s. 56a. The authority may decide not to send such information if the period under s. 56a(4) 2nd sentence has lapsed.

 

Section 57a
Costs of enforcement

The convicted person shall bear the costs of the enforcement.

 

Section 58
Measures Safeguarding Enforcement

(1) If a request for enforcement in the meaning of s. 49(1) no. 1 has been received, or if prior to its receipt it has been so requested by a competent authority of the requesting State with details of the offence on which the sentence is based, the time and place when it was committed and as exact a description of the convicted person as possible, the detention of the convicted person for the purpose of ensuring enforcement of a sentence of imprisonment may be ordered provided that on the basis of ascertainable facts

1. there is reason to believe that he would abscond from the enforcement proceedings or from enforcement, or

2. if there is a strong reason to believe that in the enforcement proceedings he would dishonestly obstruct the ascertainment of the truth.

(2) The court having jurisdiction pursuant to s. 50 shall issue the decision regarding detention. Ss. 17, 18, 20, 23 to 27 shall apply mutatis mutandis. The Oberlandesgericht shall be substituted by the Landgericht, the public prosecution service at the Oberlandesgericht shall be substituted by the public prosecution service at the Landgericht. Decisions of the Landgericht shall be subject to appeal.

(3) If the request for enforcement relates to a fine, a regulatory fine or an order for confiscation or deprivation, or if a competent authority of the re-questing State has, with identification of the person sought, the offence on which the criminal proceedings are based and the time and place of its commission prior to receipt of such request, requested preliminary measures for the purpose of ensuring enforcement under ss. 111b to 111d of the Strafprozessordnung, s. 67(1) shall apply mutatis mutandis. For the purpose of the preparation of an order for confiscation or deprivation in the re-questing State, which may also relate to the monetary value, decisions un-der ss. 111b to 111d of the Strafprozessordnung may be issued if the conditions of s. 66(2) nos. 1 and 2 are fulfilled.

(4) Subsections (1) and (3) above shall not apply if it appears ab initio that enforcement will not be admissible.

 

Part V.
Other Assistance (Mutual Legal Assistance)

 

Section 59
Admissibility of Assistance

(1) At the request of a competent authority of a foreign State, other legal assistance in a criminal matter may be provided.

(2) Legal assistance within the meaning of subsection (1) above shall be any kind of support given for foreign criminal proceedings regardless of whether the foreign proceedings are conducted by a court or by an execu-tive authority and whether the legal assistance is to be provided by a court or by an executive authority.

(3) Legal assistance may be provided only in those cases in which German courts and executive authorities could render mutual legal assistance to each other.

 

Section 60
Rendering Assistance

If the executive authority responsible for granting legal assistance deter-mines that the requirements for rendering legal assistance have been fulfilled, the executive authority responsible for rendering the legal assistance shall be bound by such determination, without prejudice to s. 61.

 

Section 61
Decision of the Court

(1) If a court responsible for rendering legal assistance is of the view that the requirements for rendering legal assistance have not been fulfilled, it shall note the reasons for its view and request a decision from the Oberlandes-gericht. The Oberlandesgericht shall also rule upon an application by the public prosecution service at the Oberlandesgericht, or in the case of s. 66, upon an application by a person claiming that his rights would be infringed if the return of an asset was ordered, whether the requirements for rendering legal assistance have been fulfilled. For these proceedings before the Oberlandesgericht, ss. 30, 31(1), (3) and (4), 32, 33(1), (2) and (4), 38(4) 2nd sentence, 40 (1) as well as the provisions of Chapter 11 of Book 1 of the Strafprozess¬ordnung, with the exception of ss. 140 to 143, shall apply mutatis mutandis. For any subsequent proceedings s. 42 shall apply mutatis mutandis.

(2) Jurisdiction ratione loci shall lie with the Oberlandesgericht and with the public prosecution service at the Oberlandesgericht in whose district the legal assistance is to be or has been rendered. If acts of legal assistance are to be or have been carried out in the districts of different Oberlandesgerichte, jurisdiction shall lie in the district of the Oberlandesgericht which first became seized of the matter, and if no court has yet been seized of the matter, in the district in which the public prosecution service at the Oberlandesgericht first became seized of the matter.

(3) The decision of the Oberlandesgericht shall be binding on those courts and authorities responsible for rendering the legal assistance.

(4) Legal assistance may not be granted if the Oberlandesgericht rules that the requirements for the rendering of legal assistance have not been complied with.

 

Section 61a
Transmission of Personal Data Without Request

(1) Courts and the public prosecution service may transmit personal data from criminal proceedings to the public authorities of another State as well as to Interstate and supranational authorities without request by the latter if

1. transmission without request to a German court or to a German public prosecution service were admissible,

2. facts exist which warrant the expectation that the transmission is neces-sary

a) in order to prepare a request by the receiving State for assistance for the purpose of prosecution or enforcement of a sentence for an offence which would be punishable by a maximum term of more than five years’ imprisonment under German law, and the conditions for granting assistance on request would be fulfilled if such a request was made or

b) in the individual case to avert a danger to the existence or security of the State, or to the life, limb or freedom of a person, or to property of significant value, protection of which is in the public interest, or to prevent a crime as described under a) above, and

3. the public authority to which the data are transmitted is competent to implement the appropriate measures under no. 2 above.

If an adequate level of data protection is ensured in the receiving State, the 1st sentence no. 2a) above shall apply with the proviso that an offence pun-ishable under German law by a maximum term of more than five years’ imprisonment shall be substituted by an offence of significant gravity.

(2) The transmission shall occur under the condition that

a) time limits pursuant to German law for data deletion and for review of data deletion will be observed,

b) transmitted data will only be used for the purposes for which they were transmitted and

c) transmitted data will be deleted or corrected immediately upon infor-mation in accordance with subsection (4) below.

(3) Transmission shall be precluded if it is evident to the court or the public prosecution service that – taking into consideration the special pub-lic interest in the transmission – the protected interests of the person demand the preclusion of the transmission in the individual case; the pro-tected interests of the person concerned include the existence of an adequate level of data protection in the receiving State.

(4) The receiving authority shall be notified without undue delay upon discovery that the transmission of data was inadmissible or that the trans-mitted data were incorrect.

 

Section 61b
Joint Investigation Teams

(1) If an international treaty so provides joint investigation teams may be established. A member of the joint investigation team seconded by a foreign State may be allowed to conduct investigations under the supervision of the relevant German team member if this has been previously approved by the sending State.

(2) Other persons may participate in the joint investigation team based on the law of the participating States or any agreement between them.

(3) The German officers participating in the joint investigation team may directly transmit information obtained in the execution of their office, including personal data, to the members sent by other States, insofar as this is necessary for the work of the joint investigation team.

(4) Insofar as the transmission of the information obtained under subsec-tion (3) above requires a specific agreement amending the purpose of its use such an agreement is admissible if a request for the use of the information was admissible.

 

Section 61c
Audiovisual Examination

A witness or an expert who fails to appear for examination by a foreign legal authority by use of a video conference although properly summoned shall neither be charged with the costs arising from his failure to appear nor have any penalty for contempt imposed upon him.

 

Section 62
Temporary Transfer to a Foreign Country for Foreign Proceedings

(1) A person detained in pre-trial detention or serving a prison sentence or detained under a custodial measure of rehabilitation and incapacitation on German territory may, at the request of a competent authority of a foreign State, be temporarily transferred to that State in order to testify as a witness or for the purpose of identification or inspection by the court in proceedings pending there if

1. after being advised of his rights by a judge he consents to such transfer and his consent is entered into the court record,

2. it is not to be expected that as a result of the transfer the person’s detention would be prolonged or that the purpose of the criminal proceedings would be jeopardised,

3. measures are in place to ensure that the person will not, during the pe-riod of his transfer, be punished or be subjected to any other sanction that cannot be issued in absentia, and that in the case of his release he may leave the requesting State, and

4. measures are in place to ensure that the person will be returned immediately after the evidence has been taken unless this requirement has been waived.

The consent (1st sentence no. 1 above) cannot be revoked.

(2) The public prosecution service at the Oberlandesgericht shall prepare the transfer and shall execute it. The public prosecution service at the Oberlandesgericht in whose district the person is detained shall have jurisdiction.

(3) The detention served in the requesting State shall be credited towards the detention being enforced in Germany. S. 37(4) shall apply mutatis mutandis.

 

Section 63
Temporary Transfer from a Foreign Country for Foreign Proceedings

(1) A person detained in pre-trial detention or serving a prison sentence or detained under a custodial measure in a foreign State may, at the request of a competent authority of that State, be temporarily transferred to German territory to give evidence in proceedings pending in that State and after the evidence has been taken, be returned. In order to ensure his return the person shall be held in detention.

(2) Detention shall be ordered by means of a written arrest warrant. The written arrest warrant shall contain information concerning

1. the person,

2. the request for taking evidence in the presence of the person and

3. the reason for the detention.

(3) The judge who is to provide the legal assistance or the judge at the Amtsgericht in whose district the executive authority that is to provide the legal assistance is located, shall have jurisdiction over the decision regarding the detention. The decision shall not be subject to appeal.

(4) Ss. 27, 45(4) and 62(2) 1st sentence shall apply mutatis mutandis.

 

Section 64
Transporting Witnesses in Transit

(1) A foreigner detained in a foreign State in pre-trial detention or serv-ing a prison sentence or otherwise detained under a custodial measure may, at the request of a competent authority, be transported through German territory to a third State in order to give evidence as a witness, for identification or inspection and may after the evidence has been taken be returned.

(2) To ensure the transport in transit, the person shall be held in deten-tion. Ss. 27, 30(1), 42, 44, 45(3) and (4), 47 and 63(2) shall apply mutatis mutandis.

 

Section 65
Transport in Transit to Enforce Sentence

The transport in transit through German territory of a foreign citizen for the purpose of enforcing a sentence or any other sanction, from the State where he was convicted to a foreign State that has taken over the en-forcement, shall be governed by ss. 43(2) to (4), 44, 45 and 47 mutatis mu-tandis with the proviso that the request may also be submitted by a competent authority of the State of conviction.

 

Section 66
Handing Over of Objects

(1) At the request of a competent authority of a foreign State objects may be handed over

1. which may serve as evidence in foreign proceedings or

2. which the person concerned or an accomplice have obtained for or through the offence on which the request is based,

3. which the person concerned or an accomplice have obtained through the sale of such object or as a replacement for its being destroyed, damaged or taken away or on the basis of a right accrued to them or as usufruct or

4. which were created by or used or meant to be used in the commission or preparation of the offence on which the request is based.

(2) Surrender shall not be admissible unless

1. the offence on which the request is based contains elements of the actus reus and mens rea of a criminal offence or of an offence permitting the imposition of a fine under German law or unless mutatis mutandis it would be such an offence under German law,

2. an order for seizure by a competent authority of the requesting State is submitted or a declaration of such an authority shows that the require-ments for seizure would exist if the objects were located in the requesting State and

3. measures are in place to ensure that the rights of third parties will not be infringed and that objects handed over under a condition will be returned upon request without undue delay.

(3) The handing over under subsection (1) nos. 2 to 4 above shall be admissible only as long as no pertinent final and enforceable foreign deci-sion exists with regard to the above-mentioned objects.

(4) The public prosecution service at the Landgericht shall prepare the decision about the handing over and shall execute it if granted. The public prosecution service at the Landgericht in whose district the object is located shall have jurisdiction. S. 61(2) 2nd sentence shall apply mutatis mutandis.

 

Section 67
Search and Seizure

(1) Objects that may be considered for handing over to a foreign State may be seized or otherwise secured even prior to the receipt of the request for surrender. To this end, a search may be conducted.

(2) If the conditions specified in s. 66(1) no. 1 and (2) no. 1 apply, objects may also be seized or otherwise secured if necessary for the enforcement of a request which is not directed at the handing over of the objects. Subsection (1) 2nd sentence above shall apply mutatis mutandis.

(3) The Amtsgericht in whose district they are to be performed shall have jurisdiction to order the search and seizure. S. 61(2) 2nd sentence shall apply mutatis mutandis.

(4) If cases of emergency the public prosecution service or its agents (s. 152 of the Gerichtsverfassungsgesetz) may order the search and seizure.

 

Section 67a
Legal Assistance to International Criminal Courts, InterState and Supranational Institutions

The provisions of Part V shall apply mutatis mutandis to requests by an international criminal court and other InterState and supranational institutions for other forms of assistance in criminal matters, unless special legislation provides an exhaustive regulation of the relevant matters.

 

Part VI.
Requests Addressed to Foreign Countries

 

Section 68
Return to a Foreign Country

(1) A person sought who has been provisionally transferred upon request and on the condition that he would be returned later for proceedings pending against him on German territory shall be returned to the requested State at the time agreed upon unless return has been waived. The public prosecution service in charge of the proceedings referred to in the 1st sentence above shall order the return and execute it.

(2) Detention by means of a written arrest warrant may be ordered against the person sought should his return not be guaranteed otherwise. The arrest warrant must contain information concerning

1. the person sought,

2. the State to which the person sought is to be returned and

3. the reasons underlying the arrest warrant.

(3) The decision about the arrest warrant shall be made by the court which has jurisdiction for custodial measures in the proceedings referred to in subsection (1) 1st sentence above. The decision shall not be subject to appeal.

(4) Ss. 18, 19, 24, 25, 27 and 45(4) shall apply mutatis mutandis.

 

Section 69
Temporary Transfer from a Foreign Country for German Proceedings

(1) A person in a foreign State who is held in pre-trial detention or serv-ing a prison sentence or against whom a custodial measure has been ordered and who has upon request been temporarily transferred to a German court or a German authority in order to give evidence as a witness, for the purpose of identification or inspection shall during his presence on German territory and in order to ensure his return be held in detention.

(2) The decision regarding the detention shall be made by the court in charge of the proceedings, in preliminary proceedings by the judge at the Amtsgericht in whose district the public prosecution service conducting the case has its seat. The decision shall not be subject to appeal.

(3) Ss. 27, 45 (4), 62(2) 1st sentence and 63(2) shall apply mutatis mutandis.

 

Section 70
Temporary Transfer to a Foreign Country for German Proceedings

A person in pre-trial detention or serving a prison sentence or against whom a custodial measure of rehabilitation and incapacitation has been ordered in Germany may be transferred to a foreign State for the taking of evidence in German criminal proceedings if the conditions of s. 62(1) 1st sentence nos. 1, 3 and 4 are fulfilled. S. 62(1) 1st sentence and (2) to (3) shall apply mutatis mutandis.

 

Section 71
Request for Enforcement

(1) A foreign State may be requested to enforce a penalty or any other sanction imposed on a foreign citizen in Germany if

1. the convicted person is resident in the foreign State or normally lives there or is present there but is not extradited because an extradition request has not been submitted or has been refused or because extradition is not practicable or

2. enforcement in the requested State is in the interest of the convicted person or in the public interest.

Transfer of the convicted person may only be effected for the purpose of en-forcing a custodial sanction. Ss. 6(2) and 11 shall apply mutatis mutandis.

(2) A foreign State may be requested to enforce a non-custodial penalty or sanction imposed on a German citizen in Germany if this is in the public interest. Furthermore, the foreign State may be requested to enforce a custodial sanction imposed on a German citizen in Germany if

1. the convicted person is resident in the foreign State or normally lives there or is present there,

2. the convicted person is not extradited because an extradition request has not been submitted or has been refused or because extradition is not practicable and

3. enforcement in the foreign State will not result in any significant disad-vantage, beyond the purpose of the sentence, to the convicted person.

If the convicted person is not present in the foreign State the enforcement of a custodial sanction may not be requested unless the convicted person, after being cautioned, consents and his consent has been noted in the court record or if he consents before a consular career official empowered to certify legally relevant declarations. The consent cannot be revoked.

(3) Enforcement may not be requested unless measures are in place to ensure that the requested State will comply with a withdrawal or a limita-tion of the request.

(4) Enforcement of a custodial sanction may not be requested unless the court has declared enforcement in the requested State to be admissible. The Oberlandesgericht shall decide on admissibility without an oral hearing. Jurisdiction shall be determined by the location of the court which issued the sentence or other sanction to be enforced or if a prison sentence is be-ing enforced in Germany by s. 462 a(1) 1st and 2nd sentences of the Straf-prozessordnung. Ss 13(1) 2nd sentence, (2), 30(2) 2nd and 4th sentences, (3), 31(1) and (4), 33, 52(3) and 53 shall apply mutatis mutandis. If the con-victed person is present on German territory, ss. 30(2) 1st sentence and 31(2) and (3) shall also apply mutatis mutandis.

(5) The German enforcement authority shall cease the enforcement to the extent that the requested State has taken over and executed enforcement. It may continue the enforcement to the extent that the requested State has not done so to completion.

 

Section 71a
Agreements as to Disposal, Return and Distribu-tion of Seized Assets

If a foreign State is requested to enforce an order for confiscation or deprivation s. 56b(1) shall apply mutatis mutandis.

 

Section 72
Conditions

Conditions which the requested State has attached to the legal assistance shall be honoured.

 

Part VII.
Applicable General Regulations

 

Section 73
Limitations on Assistance (Ordre Public)

Legal assistance and transmission of data without request shall not be granted if this would conflict with basic principles of the German legal system. Requests under Parts VIII, IX and X shall not be granted if compliance would violate the principles in Article 6 of the Treaty on the European Union.

 

Section 74
Federal Jurisdiction

(1) The Bundesministerium der Justiz with the consent of the Auswärtiges Amt and other federal ministries whose portfolio would be affected by the legal assistance shall decide on foreign requests for legal assistance and on requests to foreign States for legal assistance. If an authority responsible for rendering legal assistance falls within the portfolio of another federal ministry, that ministry shall take the place of the Bundesministerium der Justiz. The federal ministries responsible pursuant to the 1st and 2nd sentences above may delegate the exercise of their powers to federal authorities subordinate to them. The Bundesamt für Justiz shall decide on requests under subparagraphs 2 and 3 of Paragraph 2 of Part IX of this Act.

(2) The Bundesregierung may delegate the exercise of the power to decide on foreign requests for legal assistance and to request foreign States for legal assistance by way of an agreement to the Landesregierungen. The Landesregierungen shall have the right to delegate their powers further.

(3) The powers of the Bundeskriminalamt to transmit data, to place a person or an object on a „wanted“-list and to establish a person’s identity at the request of a foreign State shall be governed by ss. 14(1) 1st sentence no. 2 and 15(1) to (3) of the Bundeskriminalamtgesetz.

(4) Data transmissions according to ss. 61a and 92c shall be considered as requests under sub-sections (1) and (2) above. Data transfers according to s. 61a shall be excluded from delegation under sub-section (2) above, unless provision has been made for them in international treaties within the meaning of s. 1(3).

 

Section 74a
International Criminal Courts, InterState and Supranational Institutions

S. 74 shall apply mutatis mutandis to requests by an international criminal court and other InterState and supranational institutions for other forms of assistance in criminal matters unless special legislation provides an exhaustive regulation of the relevant matters.

 

Section 75
Costs

The reimbursement of costs incurred in the provision of legal assistance from the requesting State may be waived.

 

Section 76
Assurances of Reciprocity

In connection with German requests for legal assistance a foreign State may be given assurances that requests submitted by it will be honoured to the extent that they are not in conflict with this Act. S. 74(1) shall apply mutatis mutandis.

 

Section 77
Application of Procedural Rules

(1) To the extent that this Act does not contain any special procedural rules, the provisions of the Gerichtsverfassungsgesetz and the Einführungsgesetz zum Gerichtsverfassungsgesetz, the Strafprozessordnung, the Jugendgerichtsgesetz, the Abgabenordnung, and of the Ordnungswidrigkeitengesetz shall apply mutatis mutandis.

(2) In the case of incoming requests, the provisions applicable in German criminal and regulatory fine proceedings relating to immunity, indemnity and the conditions for search and seizure on the premises of a parliament shall apply.

 

Section 77a
Electronic Communication and Dossier

(1) If under this Act the provision of legal assistance requires the submis-sion of written documentation including originals or certified copies, the submission of electronic documents shall suffice if so provided for by sec-ondary legislation under s. 77b. The electronic documents shall contain a qualified electronic signature under the Signaturgesetz and must be fit for use by an authority or court. The same shall apply to declarations, applications or justifications which under this Act are explicitly required to be in writing or signed.

(2) The qualified electronic signature may be substituted by another se-cure procedure which ensures the authenticity and integrity of the transmitted electronic documents.

(3) An electronic document shall be deemed to have been received as soon as the receiving facility of the authority or court has recorded it. If a transmitted document is not fit for use the sender shall be informed of this without undue delay together with instructions about the valid technical parameters. Unless the use of an electronic dossier has been approved under subsection (4) below, a hard copy of the electronic document shall be made without undue delay.

(4) An electronic dossier may be kept if this has been approved by secondary legislation under s. 77b. Documents and objects for inspection (originals) handed in to the electronic dossier and fit for transposing shall be transposed into an electronic document in order to replace the original unless the secondary legislation under s. 77b provides otherwise. The elec-tronic document must contain a notice about when and by whom the original was transposed. The originals shall be stored until the end of the proceedings so that they may be produced upon request within a week.

(5) An electronic document created under subsection (4) 2nd and 3rd sentences above shall be used for the purpose of the proceedings unless there is cause to doubt that it is identical to the original.

(6) If the electronic document created under subsection (1) above in ad-dition to the notice under subsection (4) 3rd sentence above contains a no-tice bearing a qualified electronic signature

1. to the effect that the on-screen display is in content and appearance identical to the original and

2. as to whether the original or a certified copy of it had been present for the transposal,

the original may be destroyed before the end of the proceedings. Under the conditions of the 1st sentence above declarations of the person concerned and of third parties internal to the proceedings and any attached simple copies may be destroyed.

(7) Ss. 110c to 110e of the Ordnungswidrigkeitengesetz shall apply mutatis mutandis.

 

Section 77b
Authorisation to Pass Secondary Legislation

The Bundesministerium der Justiz and the Landesregierungen shall deter-mine within their remit of competence through secondary legislation

1. the date and time after which electronic documents may be submitted under s. 77a(1),

2. the signature requirements for the transmission of the electronic docu-ments under s. 77a(2) and the required form,

3. the date and time after which dossiers are to be or may be kept electronically under s. 77a(4),

4. the organisational-technical parameters for the creation, maintenance and storage of the electronic dossiers including the exceptions from the replacement of the original under s. 77a(4),

5. the originals which in variance from s. 77a(6) shall continue to be stored.

The Landesregierungen may delegate the authorisation by secondary legisla-tion to the authorities in charge of the State administration of justice. Electronic transmission under s. 77a(1) may be restricted to individual courts and authorities as well as proceedings. The use of an electronic dossier under s. 77a(4) may be restricted to proceedings before individual authorities or to different stages of proceedings.

 

Part VIII.
Extradition and Transit between Member States of the European Union

 

Paragraph 1.
General Provisions

 

Section 78
Precedence of Part VIII

(1) Unless this Part contains specific regulations, the other provisions of this Act shall apply to the extradition and transit between Member States of the European Union.

(2) This Part shall take precedence before the international agreements mentioned in s. 1(3) insofar as it contains exhaustive regulations.

 

Section 79
Duty to Grant Assistance; Preliminary Decision

(1) Admissible requests for extradition or transit by a Member State may only be denied as far as provided in this Part. The decision refusing assistance must contain reasons.

(2) Prior to the decision of the Oberlandesgericht on admissibility the authority in charge of granting assistance shall decide whether it intends to raise objections under s. 83b. The decision not to raise objections must contain reasons. It is subject to review by the Oberlandesgericht in the pro-cedure under s. 29; the parties shall be heard. When being notified under s. 41(4) the person sought shall be warned that in the case of simplified extradition a judicial review under the 3rd sentence above is not available.

(3) If facts arising after a decision under subsection (2) 1st sentence above which are capable of giving rise to obstacles to admissibility do not lead to a refusal, the decision not to raise objections shall be subject to review in the procedure under s. 33.

 

Paragraph 2.
Extradition to a Member State of the European Union

 

Section 80
Extradition of German Citizens

(1) The extradition of a German citizen for the purpose of prosecution shall not be admissible unless

1. measures are in place to ensure that the requesting Member State after a final conviction to a sentence of imprisonment or other sanction will offer to return the person sought, if he so wishes, to Germany for the purpose of enforcement and

2. the offence has a substantial link to the requesting Member State.

A substantial link to the requesting Member State typically exists if the conduct underlying the offence occurred wholly or in its essential parts on its territory and the result occurred there at least to an essential degree, or if it relates to a serious offence with a typically transborder quality which was committed at least in part on its territory.

(2) If the conditions of subsection (1) 1st sentence no. 2 above are not ful-filled, the extradition of a German citizen for the purpose of prosecution shall be inadmissible unless

1. the conditions of subsection (1) 1st sentence no. 1 above are fulfilled and the offence

2. has no substantial link to German territory and

3. would under German law also be an unlawful act fulfilling the actus reus and mens rea elements of an offence under German law or would mutatis mutandis be such an offence under German law, and if upon an individual balancing of the competing interests the interest of the person sought in his non-extradition does not outweigh the other interests.

A substantial link to the domestic territory typically exists if the conduct underlying the offence occurred wholly or in its essential parts on German territory and the result occurred there at least to an essential degree. When balancing the interests, special regard shall be had to the nature of the offence, the practical requirements and possibilities of an effective prosecu-tion, the interests of the person sought as protected under civil liberties, taking into account the goals related to the creation of a European Judicial Space and weighing them against each other. If because of the offence on which the extradition request is based a decision by the prosecution service or by a court exists ordering the discontinuance or non-lieu of a criminal investigation, this decision and the reasons for it must be taken into ac-count. This shall also apply if a court has listed a case for trial or has issued a summary judgment in written proceedings.

(3) The extradition of a German citizen for the purpose of enforcement shall be inadmissible unless the person sought after being notified of

his rights gives his consent and this is noted in a judicial record. S. 41(3) and (4) shall apply mutatis mutandis.

(4) If the request for enforcement of a final sentence of imprisonment or other custodial sanction was preceded by an extradition because of the of-fence on which the sentence is based under subsections (1) or (2) above or if the request is based on the non-consent of the person sought under subsection (3) above, s. 49(1) no. 3 shall not apply. If in the case of such a request and for the purposes of conversion under s. 54 there is no maximum penalty for the offence under German law because s. 49(1) no. 3 does not apply, the maximum penalty shall be two years’ imprisonment.

 

Section 81
Extradition for the Purpose of Prosecution and Enforcement

S. 3 shall apply under the proviso that

1. extradition for the purpose of prosecution shall not be admissible unless under the law of the requesting Member State the offence is punishable by imprisonment or another sanction with a maximum term of no less than twelve months,

2. extradition for the purpose of enforcement shall not be admissible unless under the law of the requesting Member State a custodial sanction of no less than four months is to be enforced,

3. extradition in tax, customs and currency matters shall also be admissible if the German law does not recognise similar taxes or does not contain similar tax, customs or currency laws as the law of the requesting Mem-ber State,

4. double criminality shall not need to be established if the offence on which the request is based is under the law of the requesting State pun-ishable by a custodial sanction with a maximum term of no less than three years and is listed in one of the categories of offences listed in arti-cle 2 (2) of the Council Framework Decision 2002/584/JHA of 13 June 2002 on the European arrest warrant and the surrender procedures

between Member States (OJ L 190/1 of 18 July 2002).

 

Section 82
Non-Applicability of Provisions

Ss. 5, 6(1), 7 and, insofar as a European arrest warrant is concerned, s. 11 shall not apply.

 

Section 83
Additional Conditions of Admissibility

Extradition shall not be admissible

1. if the person sought has already been finally tried in another Member State for the offence on which the request is based and that in the case of a conviction the sentence has been enforced, is currently being enforced or can no longer be enforced under the law of the convicting State,

2. if the person sought was at the time of the offence not criminally liable under s. 19 of the Strafgesetzbuch or

3. if in the case of a request for the purpose of enforcement the sentence on which the request is based was issued in absentia and the person sought had not been personally summoned to or otherwise been informed about the date of the hearing which led to the judgment in absentia unless the person sought, in a case where defence counsel had been appointed, frustrated the service of a summons through flight in the knowledge of the proceedings against him, or if after his transfer he is granted a trial de novo in which the charges against him will be reviewed in their entirety and where he will be given the right to be present at the trial, or

4. if the offence upon which the request is based is under the law of the requesting Member State punishable by life imprisonment or another custodial sanction for life or if the person sought was sentenced to such a penalty and there is no review of the penalty or sanction either upon request or propio motu after a period of no longer than 20 years.

 

Section 83a
Extradition Documents

(1) Extradition shall not be admissible unless the documentation mentioned in s. 10 or a European arrest warrant containing the following information have been transmitted:

1. the identity of the person sought as defined in the Annex to the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, and his citizenship,

2. name and address of the requesting justice authority,

3. the declaration of whether an enforceable judgment, an arrest warrant or another enforceable judicial decision with equal legal effect exists,

4. the nature and legal characterisation of the offence, including the provi-sions applied,

5. a description of the circumstances in which the offence was committed, including the time and place of its commission and the mode of partici-pation by the person sought and

6. the maximum term provided for under the law of the requesting Mem-ber State for the pertinent offence or in the case of a final judgment the actual sentence imposed.

(2) Listings for arrest for the purposes of extradition under the Schengen Agreement containing the information under subsection (1) nos. 1 to 6 above or to which this information has subsequently been attached shall be treated as an European arrest warrant.

 

Section 83b
Obstacles to Granting an Application

(1) Extradition may be refused

a) if criminal proceedings are pending against the person sought in Ger-many for the same offence as the one on which the request is based,

b) if criminal proceedings against the person sought for the same offence as the one on which the request is based, have either not been instituted or if initiated have been closed,

c) if a request for extradition by a third State shall be given precedence,

d) unless on the basis of the duty to surrender under the Council Frame-work Decision of 13 June 2002 (OJ L 190/1) on the European Arrest Warrant and the surrender procedures between the Member States, on the basis of an assurance by the requesting State or based on other reasons it can be expected that the requesting State would honour a similar German request.

(2) Extradition of a foreign citizen normally living on German territory may further be refused

a) if in the case of an extradition for the purpose of prosecution the

extradition of a German citizen would be inadmissible under s. 80(1) and (2),

b) if in the case of an extradition for the purpose of enforcement, after be-ing judicially warned, the person sought does not consent on the record of the court and his interest in an enforcement in Germany prevails; s. 41(3) and (4) shall apply mutatis mutandis.

S. 80(4) shall apply mutatis mutandis.

 

Section 83c
Time Limits

(1) The decision on extradition shall be made no later than within 60 days of the arrest of the person sought.

(2) If the person sought consents to simplified extradition the decision on extradition shall be made no later than within ten days of the declaration of consent.

(3) Upon granting extradition a date for the transfer of the person sought shall be arranged with the requesting Member State. The date shall be no later than within ten days of the decision granting the extradition. If the date cannot be kept due to circumstances beyond the control of the requesting Member State a new date for transfer within ten days shall be arranged. The arrangement of a date for transfer may be delayed on account of a prosecution or enforcement proceedings pending against the person sought in Germany or for serious humanitarian reasons.

(4) If the time limits mentioned in this provision cannot be adhered to based on extraordinary circumstances the Bundesregierung shall inform Eu-rojust of this fact and of the reasons for the delay; personal data shall not be transmitted.

(5) The decision about a request for extension of a granted extradition shall be made no later than within 30 days of the receipt of that request.

 

Section 83d
Release of the Person Sought

The person sought shall be released from extradition detention unless he was transferred within ten days of the date arranged under s. 83c(3) and no new transfer date has been arranged.

 

Section 83e
Interrogation of the Person Sought

(1) As long as a decision on extradition is pending a request by the requesting Member State for interrogation of the person sought as a suspect shall be granted.

(2) Upon request representatives of the requesting Member State may be present at the interrogation.

 

Paragraph 3.
Transit to a Member State of the European Union

 

Section 83f
Transit

(1) Transit through Germany from one Member State to another Member State shall be admissible if the submitted documentation shows

1. the identity of the person sought as defined in the Annex to the Council Framework Decision of 13 June 2002 (OJ L 190/1) on the European arrest warrant and the surrender procedures between Member States, and his citizenship,

2. the existence of an European arrest warrant or of a document mentioned in s. 10,

3. the nature and legal characterisation of the offence and

4. a description of the circumstances in which the offence was committed, including the time and place of its commission.

(2) Subsection (1) above shall apply to the transit from a third State to a Member State with the proviso that the information listed in subsection (1) no. 2 above shall be substituted by the information that a request for extradition exists.

(3) Transit of a German citizen for the purpose of prosecution shall be inadmissible unless the destinatory Member State gives an assurance to re-turn the person sought to Germany upon request by Germany after the imposition of a final sentence of imprisonment or another sanction for the purpose of enforcement. Transit of German citizens for the purpose of en-forcement shall be inadmissible unless the person sought consents. S. 80(4) shall apply mutatis mutandis.

(4) A decision on a request for transit shall be made no later than within 30 days of the receipt of the request.

 

Section 83g
Transport by Air

S. 83f shall also apply to transport by air in the case of an unexpected landing on German territory.

 

Paragraph 4.
Requests for Extradition to a Member State of the European Union

 

Section 83h
Rule of Speciality

(1) Persons transferred by a Member State on the basis of a European Arrest Warrant must

1. neither be prosecuted nor convicted or be subjected to a custodial measure for another offence than the one on which the transfer was based and

2. not be transferred, surrendered or deported to a third State.

(2) Subsection (1) above shall not apply if

1. the transferred person has not left German territory within 45 days of his final release despite having had the opportunity to do so, or after having left has returned to it,

2. the offence is not punishable by imprisonment or a custodial measure of rehabilitation and incapacitation,

3. the prosecution does not entail the use of measures restricting personal freedom,

4. the transferred person is subjected to the enforcement of a non-custodial penalty or measure of rehabilitation and incapacitation, even if this penalty or measure may have a restricting effect on personal freedom or

5. the requested Member State or the person sought have declared a pertinent waiver.

(3) The waiver declared by the transferred person after transfer shall be recorded by a judge or the public prosecution service. The waiver cannot be revoked. The transferred person shall be warned of this consequence.

 

Section 83i
Notification about Delays

The Bundesregierung shall notify the Council of the European Union if there have been repeated delays in the context of extraditions by another Member State. As far as necessary for the purpose of establishing the rea-sons for the delay in the individual case pseudonymised data of the person sought may be transmitted. The Bundesregierung may reveal the personality link only towards the State from whom extradition had been requested

and only insofar as it is necessary for the evaluation of the implementation of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (OJ L 190/1).

 

Part IX.
Assistance by Enforcement to Member States of the European Union

 

Paragraph 1.
Custodial Sanctions

 

Section 84
Incoming Requests

The provisions of Parts IV and the general provisions of Parts I and VII of this Act shall apply to requests by a Member State of the European Union for legal assistance by enforcement of a final custodial sentence issued abroad.

 

Section 85
Outgoing Requests

Ss. 71 and 72 as well as the general provisions of Parts I and VII of this Act shall apply to outgoing requests to a Member State of the European Union for legal assistance by enforcement of a final custodial sentence is-sued in Germany.

 

Paragraph 2.
Financial Penalties

 

Subparagraph 1.
General Provisions

 

Section 86
Precedence

(1) To the extent that this section does not contain any special rules, the remaining provisions of this Act shall be applicable to requests for enforcement of financial penalties in mutual legal assistance transactions with the Member States of the European Union.

(2) This section shall have precedence over the international law agree-ments listed in section 1(3) to the extent that it contains exhaustive regulations.

 

Subparagraph 2.
Incoming Requests

 

Section 87
Principle

(1) Assistance for the purpose of enforcement to another Member State according to the Council Framework Decision 2005/214/JHA of 24

February 2005 on the application of the principle of mutual recognition to financial penalties (OJ L 76/16 of 22 March 2005) is regulated by this subparagraph. The provisions of Part IV of this Act shall apply only insofar as the following provisions expressly refer to them.

(2) Enforcement assistance may be given by enforcement of a final decision against the person concerned requiring a financial penalty to be paid where the decision was made by

1. a court of the requesting State in respect of a criminal offence under the law of the requesting State,

2. an authority of the requesting Member State other than a court in re-spect of a criminal offence under the law of the requesting State, provided that the person concerned has had an opportunity to have the case heard by a court having jurisdiction in particular in criminal mat-ters,

3. an authority of the requesting State other than a court in respect of acts which are punishable under the national law of the requesting State by virtue of being infringements of the rules of law, provided that the person concerned has had an opportunity to have the case heard by a court having jurisdiction in particular in criminal matters, or

4. a court having jurisdiction in particular in criminal matters, where the decision was made regarding a decision as referred to under no. 3 above.

(3) A financial penalty in the meaning of subsection (2) above is an obligation to pay

1. a sum of money on conviction of an offence imposed in a decision,

2. a sum of money in respect of the costs of court or administrative proceedings leading to the decision apart from the sanction under no. 1 above,

3. compensation imposed in the same decision for the benefit of victims, where the victim may not be a civil party to the proceedings and the court is acting in the exercise of its criminal jurisdiction, or

4. a sum of money to a public fund or a victim support organisation, im-posed in the same decision apart from a sanction under no. 1 above.

A financial penalty shall not include orders for the confiscation of instrumentalities or proceeds of crime, orders that have a civil nature and arise out of a claim for damages and restitution and which are enforceable in accordance with Council Regulation (EC) No 44/2001 of 22 December 2000 (OJ L 12/1) on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.

 

Section 87a
Documentation

The enforcement of a financial penalty shall be inadmissible unless the following documents have been submitted:

1. the original of the decision to be enforced or a certified copy of it,

2. the original certificate, filled in and signed by the competent authority of the requesting State, according to the standard form printed in the Annex to the Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties.

 

Section 87b
Prerequisites of Admissibility

(1) The enforcement of the financial penalty shall be inadmissible unless a fine or a regulatory fine could have been imposed under German law for the offence on which the decision is based, notwithstanding procedural obstacles and, if necessary, according to a reorganisation of facts mutatis mutandis. Double criminality shall not be examined if the offence on which the decision is based fulfills, under the law of the requesting Member State, the criteria of one of the criminal or regulatory offences listed in article 5(1) of the Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties.

(2) The enforcement of the financial penalty shall be inadmissible to the extent that it has been paid or collected.

(3) The enforcement of the financial penalty shall be inadmissible if

1. the certificate mentioned in s. 87a no. 2 is incomplete or manifestly does not correspond to the decision,

2. the financial penalty is less than the amount of EUR 70 or the corresponding value calculated on the basis of the exchange rate valid on the date of the decision to be enforced,

3. the decision was imposed in a written procedure and the person con-cerned was not, in accordance with the law of the issuing State, in-formed personally or via a representative, competent according to national law, of his right to contest the case and of the time limits of such a legal remedy,

4. the decision was issued in the absence of the person concerned, unless the person concerned was informed personally, or via a representative, competent according to national law, of the proceedings in accordance with the law of the issuing State, or that the person concerned had in-dicated that he does not wish to contest the case,

5. a decision within the meaning of s. 9 no. 1 was imposed on the person concerned in Germany for the same offence as the one on which the decision is based and if for that offence German courts had jurisdiction, or if for the same offence as the one on which the decision is based a decision was imposed on the person concerned and enforced in a State other than the requesting State or Germany,

6. German courts had jurisdiction over the offence on which the decision is based and the enforcement under German law is statute-barred,

7. the person concerned on account of his age at the time of the offence on which the decision is based was either acting without guilt under German law or not criminally liable within the meaning of s. 3 1st sentence of the Jugendgerichtsgesetz,

8. the offence on which the decision is based was wholly or partially com-mitted on German territory or on a ship or aircraft entitled to fly the federal flag or the national insignia of the Federal Republic of Germany and the offence was neither punishable as a criminal offence nor sanctionable by a regulatory fine as a regulatory offence under German law, or

9. the person concerned did not have the opportunity in the foreign proceedings to state that he was not responsible for the actions on which the decision is based and he does so before the authority competent for granting enforcement.

 

Section 87c
Preparation of the Decision Granting Assistance

(1) The granting authority shall provide the person concerned with copies of the documents mentioned in s. 87a. He shall have the opportunity to make representations within two weeks of receipt and shall be warned that after lapse of that period the above authority will decide whether enforce-ment is granted or file an application for a judicial ruling under s. 87i(1).

(2) The person concerned need not be heard in accordance with subsection (1) above if the granting authority

1. refuses enforcement because of lack of admissibility,

2. raises an objection to granting assistance under s. 87d or

3. immediately requests the judicial conversion of a decision under s. 87i(1).

 

Section 87d
Duty to Grant Assistance

An admissible request for enforcement of a financial penalty may only be refused if the offence on which the request is based

1. was wholly or partially committed on German territory or on a ship or aircraft entitled to fly the federal flag or the national insignia of the Federal Republic of Germany and the offence was punishable as a criminal offence or sanctionable by a regulatory fine as a regulatory offence under German law or

2. was committed outside the territory of the requesting State and the of-fence is not punishable as a criminal offence or sanctionable by a regulatory fine as a regulatory offence under German law.

 

Section 87e
Assistance of Counsel

S. 53 on assistance of counsel shall apply mutatis mutandis.

 

Section 87f
Granting Enforcement

(1) The authority competent for granting assistance shall decide on the enforcement unless it requests a judicial ruling under s. 87i(1).

(2) S. 54(2) and (4) shall apply mutatis mutandis. If the offence on which the request of the other Member State is based was not committed on its territory and if German courts have jurisdiction, the amount of the fine or regulatory fine shall be reduced to the maximum for a similar offence under German law if the sanction imposed in the other Member State exceeds that maximum.

(3) To the extent that the decision of the other Member State is declared enforceable the decision and the amount of the financial penalty to be en-forced shall be stated. The decision granting enforcement must contain reasons and shall be formally served on the person concerned. The decision granting enforcement shall contain

1. the caution that the granting of enforcement shall become final and the financial penalty enforceable unless an objection is filed in accordance with subsection (4) below,

2. the request to the person concerned to pay the financial penalty to the Bundeskasse no later than within two weeks of the decision becoming final.

(4) The person concerned may within two weeks of service file an ob-jection against the decision granting enforcement, either in writing or in person with the authority granting enforcement. Ss. 297 to 300 and s. 302 of the Strafprozessordnung on appeals and ss. 42 to 47 of the Strafprozessord-nung on time limits and reinstatement shall apply mutatis mutandis.

 

Section 87g
Judicial Procedure

(1) The courts of ordinary jurisdiction shall be seized of remedies against the decision granting enforcement. Unless the authority granting enforcement upholds the objection by the person concerned the Amtsgericht with jurisdiction under subsection (2) below shall decide. The competent Amts¬gericht shall also decide upon a motion by the authority granting enforcement pursuant to s. 87i. S. 34(1), s. 107 of the Jugendgerichtsgesetz and s. 68(2) of the Ordnungswidrigkeitengesetz shall apply mutatis mutandis. The authority granting enforcement shall prepare the decision.

(2) Jurisdiction ratione loci shall be determined by the place of residence of the person concerned if he is a natural person. If the person concerned has no residence within Germany jurisdiction shall be determined by the place where he normally lives, or if such a place is not known, his last place of residence. If the person concerned is a legal person the court where it has its seat shall have jurisdiction. In the case of s. 87h the time of receipt of the objection, in the case of s. 87i the time of receipt of the request by the court, shall be determinative. If none of these localities can be established the court in whose jurisdiction assets of the person concerned exist shall have jurisdiction. If assets of the person concerned exist in the jurisdictions of different Amtsgerichte the jurisdiction shall be determined according to which Amtsgericht was first seized of the matter, without prejudice to s. 58(1) of the Gerichtsverfassungsgesetz.

(3) The court shall serve the person concerned with a copy of the trans-lation into German of the decision of the other Member State insofar as necessary for the exercise of his rights. If a request under s. 87i(1) is filed the person concerned shall also be served with copies of the documentation listed in s. 87a and of the decision under s. 87i(2) not to raise objections against the granting of enforcement. In the case of the 2nd sentence above the person concerned shall be asked to make representations within a period to be determined by the court.

(4) For the preparation of the decision s. 52(1) shall apply mutatis mutandis with the proviso that the competent authority in the requesting Member State must have been given the opportunity to submit additional documents if those submitted previously are insufficient to make an evalua-tion about whether the authority granting enforcement has exercised its discretion not to raise objections correctly. Time limits may be set for the submission of additional documents. The authority granting enforcement shall execute the judicial decisions made under the 1st and 2nd sentences above. The court may hear additional evidence related to the criteria listed in s. 87h(3) 1st sentence nos. 1, 2 and 3. Ss. 30(2) 2nd to 4th sentences and (3), 31(4) shall apply mutatis mutandis. If the person concerned is located on German territory ss. 30(2) 1st sentence and 31(2) shall apply mutatis mutandis. S. 31(1) 1st sentence shall apply mutatis mutandis with the proviso that the authority granting enforcement shall be substituted by the public prosecution service. The authority granting enforcement shall not be obliged to attend the hearing; the court shall inform the authority if it deems its attendance appropriate.

 

Section 87h
Decision of the Court after Objection

(1) The Amtsgericht shall decide on the admissibility and merits of the objection by order .

(2) If the provisions on the filing of the objection have not been complied with the court shall dismiss it as inadmissible. The order shall not be subject to appeal.

(3) The objection by the person concerned shall be dismissed by order on the merits to the extent that

1. the enforcement of the decision of the other Member State is admis¬sible,

2. the authority granting enforcement has exercised its discretion not to raise objections against enforcement correctly and

3. the financial penalty was correctly adapted pursuant to s. 87f(2).

To the extent that the objection succeeds because of inadmissibility of enforcement or because of incorrect exercise of discretion the decision of the other Member State shall be declared unenforceable. If an adaptation under s. 87f(2) is incorrect or has been omitted despite being required the court shall itself adapt the financial penalty and declare the decision en-forceable. To the extent that this entails an amendment of the authority’s decision granting enforcement the amount of the financial penalty to be enforced shall be listed in the tenor of the order.

(4) S. 77b of the Ordnungswidrigkeitengesetz shall apply mutatis mutandis.

 

Section 87i
Judicial Decision upon Request by Authority Granting Enforcement; Granting Enforcement

(1) If the decision of another Member State

1. is a financial penalty under s. 87(2) nos. 1 and 2 imposed on a juvenile or young adult in the meaning of the Jugendgerichtsgesetz,

2. was imposed on a legal person incorporated under the law of a Member State of the European Union and which has its statutory seat, head office or main branch within the European Union or

3. was transmitted for the purpose of enforcement of a financial penalty under s. 87(3) 1st sentence nos. 3 or 4,

the authority granting enforcement shall, insofar as enforcement is admis-sible, request conversion of the decision by the court.

(2) When requesting a judicial decision under subsection (1) above the authority shall declare that it does not intend to raise objections against granting enforcement. The decision not to raise objections shall contain reasons.

(3) To the extent that the enforcement of the decision of another Member State is admissible and the authority has exercised its discretion not to raise objections correctly the decision shall be declared enforceable. The financial penalty shall be converted into the sanction under German law most closely resembling it. Regarding the adaptation of the amount of the financial penalty s. 87f(2) shall apply mutatis mutandis.

(4) A financial penalty imposed on a juvenile pursuant to s. 87(2) nos. 1 and 2 shall be converted into a sanction admissible under the Jugendgerichtsgesetz. The 1st sentence above shall apply mutatis mutandis to a young adult if juvenile criminal law is applied under s. 105(1) of the Jugendgerichtsgesetz. In all other cases the decision shall be declared enforceable.

(5) The Amtsgericht shall decide on the enforceability of the decison by order. To the extent that the decision is declared enforceable the decision and the nature and amount of the financial penalty to be enforced shall be listed in the tenor of the order.

(6) The authority shall grant enforcement in accordance with the final judicial decision. The decision granting enforcement shall not be subject to appeal. S. 87f(3) 1st and 2nd sentences shall apply mutatis mutandis. The granting decision shall contain

1. the notice that the decision granting enforcement is final and the financial penalty has become enforceable, and

2. the request to the person concerned to pay the financial penalty no later than after two weeks of service to the appropriate public fund pursuant to s. 87n(5) 3rd sentence.

 

Section 87j
Appeal on Points of Law

(1) The decisions of the Amtsgericht under s. 87h(3) and s. 87i(5) are subject to appeal on points of law (Rechtsbeschwerde) by leave of the court. The appeal may be filed by the person concerned and the authority granting enforcement. After the respondent has had an opportunity to be heard the Amtsgericht shall submit the dossier via the prosecution service to the appellate court.

(2) For the appeal and the ensuing procedure the provisions of the Strafprozessordnung and of the Gerichtsverfassungsgesetz on the Revision shall apply mutatis mutandis unless this Act provides otherwise.

(3) The time limit for filing the appeal shall begin once service of the decision has been effected.

(4) The appellate court shall decide by order without an oral hearing.

(5) If the appellate court quashes the appealed decision, it may in con-trast to s 354(1) and (2) of the Strafprozessordnung revise the decision itself or remand it to the Amtsgericht whose decision was quashed or to another Amtsgericht of the same Land.

(6) For the further procedure s. 42 shall apply mutatis mutandis.

 

Section 87k
Leave to Appeal on Points of Law

(1) The appellate court shall grant leave to appeal on points of law upon request by the person concerned or the authority granting enforcement if it deems it necessary

1. to review the decision for the purpose of the development of the law or in order to ensure a uniform jurisprudence or

2. to quash the decision because the right to be heard was denied.

(2) For the leave request the provisions on the filing of a Rechtsbeschwerde shall apply mutatis mutandis. The request shall be deemed to be an appeal filed prophylactically. The provisions on the filing of the appeal pleadings and their justification (ss. 344, 345 of the Strafprozessordnung) shall be complied with. In his justification of the appeal the appellant shall state at the same time why the conditions mentioned in subsection (1) above have been fulfilled. S. 35a of the Strafprozessordnung shall apply mutatis mutandis.

(3) The appellate court shall decide by order without an oral hearing. The decision rejecting the request shall not require any reasons. If the request is rejected the appeal shall be deemed to have been withdrawn.

(4) If before the decision upon the request is taken a procedural obstacle arises the appellate court shall discontinue the proceedings only if the ob-stacle arose after the decision pursuant to s. 87h(3) or s. 87i(5).

 

Section 87l
Composition of the Senates of the Oberlandesgericht

(1) The Oberlandesgericht shall decide on the leave to appeal and on the appeal.

(2) The Senate shall sit with one judge unless provided otherwise.

(3) The Senate shall be composed of three judges including the presiding judge in proceedings

1. concerning the enforcement of a financial penalty within the meaning of s. 87(2) no. 1 or 2,

2. in which a reason for leave to appeal within the meaning of s. 87k(1) no. 1 exists,

3. in which the factual or legal complexity of the case requires it or

4. in which the court intends to deviate from the decision of an Oberland-esgericht.

 

Section 87m
Ne bis in idem; Notice to the Bundeszentralregister

(1) If enforcement is granted the offence on which the decision of the other Member State is based may no longer under German law be prose-cuted either as a criminal offence or a regulatory offence.

(2) The granting or refusal of enforcement of the decision of another Member State under s. 87(2) no. 1 or 2 shall be notified to the Bundeszen-tralregister unless

1. the decision of the other Member State cannot be entered in the Bun-deszentralregister or

2. the decision was imposed on a German citizen and the notice is unnec-essary because the other Member State regularly informs the Bundeszen-tralregister of criminal convictions of German citizens.

 

Section 87n
Enforcement

(1) The authority granting enforcement shall be in charge of the en-forcement as enforcement authority. This shall apply unless the court decides on an objection under s. 87h or upon a request of the authority pursuant to s. 87i. In the cases under the 2nd sentence above the prosecution service with the Landgericht in whose jurisdiction the competent Amtsgericht has its seat shall be the enforcement authority. To the extent that in the cases under the 2nd sentence above a converted sanction under juvenile law is to be enforced enforcement shall follow the rules set out in s. 82 of the Jugendgerichtsgesetz.

(2) For the purposes of enforcement ss. 34, 93 to 99(1), 101, 102, 103(1) no. 2, (2) and 104(2) and (3) 1st sentence no. 1 and 2nd sentence of the Ordnungswidrigkeitengesetz shall apply mutatis mutandis. The judicial decisions necessary for the enforcement under the 1st sentence above shall lie with the Amtsgericht at the seat of the enforcement authority. In proceedings against juveniles and young adults s. 82(1), s. 83(2) and ss. 84 and 85(5) of the Jugendgerichtsgesetz shall apply mutatis mutandis. The provisions of the Justizbeitreibungsordnung shall apply unless otherwise provided in this Act. The 1st to 4th sentences above shall not apply if a decision pursuant to s. 87i(4) 1st and 2nd sentences has been issued.

(3) Custodial measures must not be ordered when enforcing a decision under s. 87i(4). This also applies to the enforcement of a decision against juveniles or young adults under subsection (2) above.

(4) S. 57(6) shall apply mutatis mutandis.

(5) The revenue from the enforcement shall be transferred to the Bun-deskasse. This shall not apply if the court decides on an objection under s. 87h or upon a request by the authority granting enforcement pursuant to s. 87i. In the cases of the 2nd sentence above the revenue shall be transferred to the funds of the Land in which the competent Amtsgericht has its seat. In deviation from the 1st to 3rd sentences above an agreement may be made with the requesting Member State to the effect that in the case of enforcement of a decision converted under s. 87(3) 1st sentence no. 3 the revenue shall be transferred to the victim.

(6) The person concerned shall bear the costs of the enforcement.

 

Subparagraph 3.
Outgoing Requests

 

Section 87o
Principle

(1) Requests to another Member State under the Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties shall be regulated by this subparagraph. S. 71 shall not apply. S. 87(2) nos. 1, 3 and 4, (3) 1st sen-tence nos. 1 and 2 shall apply mutatis mutandis.

(2) The competent authority of another Member State may be requested to enforce a financial penalty if the person concerned

1. is a natural person with his residence in the requested Member State or who normally lives there,

2. is a legal person with its seat in the requested Member State,

3. holds assets in the requested Member State or

4. has income in the requested Member State.

 

Section 87p
Domestic Enforcement Procedure

If the other Member State was requested to effect enforcement, such en-forcement within Germany shall not be admissible before

1. the request has been withdrawn or

2. the requested Member State has refused to effect enforcement.

Enforcement within Germany shall be inadmissible if the requested Mem-ber State justified its refusal by the fact that for the same offence a de-cision was issued against the person concerned in the requested Member State or that a decision was issued and enforced in a third State.

 

Paragraph 3.
Confiscation and Deprivation

 

Section 88
Principle

Assistance in enforcement for another Member State of the European Union pursuant to Council Framework Decision 2006/783/JHA of 6 October 2006 on the application of the principle of mutual recognition to confiscation orders (OJ L 328/59 of 24 November 2006) shall be regulated by ss. 88a to 88f. To the extent that this paragraph does not contain

specific regulations or if the request was not submitted pursuant to the Framework Decision 2006/783/JHA the provisions of Part IV and the general provisions of Parts I and VII of this Act shall apply.

 

Section 88a
Prerequsisites of Admissibility

(1) In deviation from s. 49(1) the enforcement of a judicial order for deprivation or confiscation of a specific monetary value or asset submitted in accordance with Framework Decision 2006/783/JHA shall not be ad-missible unless

1. a competent authority of another Member State of the European Union has so requested and submitted the documentation listed in s. 88b and

2. equally under German law for the offence on which the foreign order for confiscation or deprivation is based and notwithstanding procedural obstacles and if necessary mutatis mutandis, such an order could have been made notwithstanding s. 73(1) 2nd sentence of the Strafgesetzbuch with the following proviso:

a) Except in cases of requests for enforcement of an order similar to s. 73d or s. 74a of the Strafgesetzbuch double criminality shall not need to be examined if the offence on which the request is based is punishable under the law of the requesting Member State by a sentence of imprisonment with a maximum of no less than three years and belongs to one of the offence categories listed in Article 6(1) of Frame¬work Decision 2006/783/JHA and

b) that the enforcement in tax, duties, customs and currency matters shall also be admissible if the German law does not provide for equivalent taxes or duties or does not contain similar tax, duties, cus-toms or currency provisions as the law of the requesting Member State.

(2) The enforcement of an order for deprivation or confiscation submitted according to subsection (1) above shall be inadmissible if

1. the offence was committed on German territory or in one of the means of transportation listed in s. 4 of the Strafgesetzbuch and is not punishable under German law;

2. the convicted person did neither attend in person the hearing leading to the order for deprivation or confiscation nor have representation by counsel unless

a) the convicted person or his defence counsel were notified of the proceedings under the law of the requesting Member State or

b) the convicted person had declared that he does not wish to contest the order;

3. the convicted person has already been finally tried for the same offence on which the request is based by another State than the requesting Member State provided that the sanction has already been enforced, is currently being enforced or can no longer be enforced under the law of the convicting State, unless deprivation or confiscation could have been ordered separately under s. 76a of the Strafgesetzbuch;

4. for offences for which German law is applicable enforcement is statute-barred under German law, unless deprivation or confiscation could have been ordered separately under s. 76a(2) no. 1 of the Strafgesetzbuch.

 

Section 88b
Documentation

(1) The requesting Member State shall submit the original or a certified copy of a final judicial order together with a certificate under Article 4 of the Framework Decision 2006/783/JHA containing the following data:

1. name and address of the court ordering the deprivation or confiscation;

2. names and addresses of the justice authorities with competence for the request;

3. the description, as precisely as possible, of the natural or legal person against whom the decision is to be enforced;

4. the monetary amount or the description of another asset which is to be the object of the enforcement;

5. the reasons for the order;

6. a description of the circumstances of the offence, including the time and place of the offence;

7. the nature and legal characterisation of the offence, including the provi-sions underlying the order and

8. information about the personal attendance of the convicted person at the hearing or why the attendance was not required.

(2) If a certificate pursuant to subsection (1) above has not been submitted or is at the time of submission of the request incomplete or does clearly not correspond to the order to be enforced the competent authority may set a deadline for submission, completion or correction. If the certifi-cate pursuant to subsection (1) above is incomplete the competent authority may waive the submission of a complete certificate if the required data can be gathered from the order to be enforced or other submitted documents.

 

Section 88c
Grounds for Refusal

A request which is admissible under s. 88a may not be refused unless

1. the certificate pursuant to Article 4 of Framework Decision 2006/783/JHA has not been submitted, completed or corrected in the procedure pursuant to s. 88b(2) 1st sentence;

2. the offence was committed on German territory or in one of the means of transportation listed in s. 4 of the Strafgesetzbuch;

3. the offence was neither committed on German territory nor the territory of the requesting Member State and German criminal law does not apply or the act is not an offence under German law;

4. a German order for deprivation or confiscation exists that attaches to the same assets and for reasons of public interest enforcement of the German order is to be given precedence or

5. a request for enforcement of an order for deprivation or confiscation from a third State has been received that attaches to the same assets and for reasons of public interest enforcement of this order is to be given precedence.

 

Section 88d
Procedure

(1) If the prosecution service with jurisdiction under ss. 50 and 51 considers the request admissible and intends not to raise any objections under s. 88c it shall initiate appropriate and necessary measures for the provisional freezing of the assets that are to be the object of the enfor-cement according to ss. 111b to 111d of the Strafprozessordnung and shall give the convicted person and third parties which may under the circumstances of the case claim a right to the assets an opportunity to make representations. If the prosecution decides not to raise objections under s. 88c nos. 1 to 3 it shall give reasons for this decision in the request for a judicial decision about enforceability.

(2) The competent authority may stay the proceedings,

1. as long as there is reason to believe that the order is being simultane-ously and comprehensively enforced in another Member State or

2. as long as the procedure for recognition and enforcement of the foreign order could jeopardise ongoing criminal or enforcement proceedings.

(3) In deviation from s. 54(1) the foreign order shall be declared en-forceable by the court under ss. 50 and 55 to the extent that its enforcement is admissible and the prosecution has exercised its discretion not to raise objections under s. 88c nos. 1 to 3 correctly. The tenor of the declaration shall also contain the monetary amount or asset subject to enforcement. S. 54(2a) and (4) shall apply mutatis mutandis. The imposed sanction shall be converted into the sanction under German law that most closely resembles it unless the tenor of the foreign decision is enforceable under s. 459g of the Strafprozessordnung.

 

Section 88e
Enforcement

(1) S. 57(1) shall apply with the proviso that the jurisdiction for the enforcement of a foreign order shall also be determined by the provisions of the Jugendgerichtsgesetz if the sanction is not converted pursuant to s. 88d(3) 4th sentence and the court has applied the Jugendgerichtsgesetz when deciding about enforceability.

(2) S. 57(4) shall apply mutatis mutandis with the proviso that remand in custody in order to force a sworn affidavit about the assets or the where-abouts of certain objects may only be ordered with the consent of the competent authority of the requesting Member State.

(3) The enforcement may be provisionally abandoned only under the conditions of s. 88d(2).

 

Section 88f
Distribution of Revenue

Half the revenue from the enforcement shall be assigned to the competent authority of the requesting Member State if without deduction of costs and compensation (s. 56a) its value exceeds EUR 10,000 and no agreement under s. 56b(1) has been reached. This shall not apply if the consent necessary under s. 56b(2) was refused.

 

Section 89
Provisional Asset Freezing Measures

Ss. 91 and 94 to 96 shall apply mutatis mutandis to requests of a Member State of the European Union for provisional freezing measures under ss. 111b to 111d of the Strafprozessordnung for the purpose of the preparation in the requesting Member State of an order for confiscation or deprivation.

 

Section 90
Outgoing Requests

(1) The competent authorities may submit requests for enforcement of an order for confiscation or deprivation pursuant to Framework Decision 2006/783/JHA to another Member State of the European Union. An identical simultaneous request to a further Member State may not be submitted unless

1. there is good reason to believe that a specific asset or several assets cov-ered by the order to be enforced may be located in different Member States or

2. the enforcement into a specific asset or because of a monetary amount requires a request to multiple Member States.

(2) Requests that have not been completed shall be withdrawn as soon as the conditions under subsection (1) above cease to exist.

(3) If the order for confiscation or deprivation attaches to a specific object the competent enforcement authority may consent to substituting enforcement into a monetary amount equal to its value if a decision under s. 76 of the Strafgesetzbuch has been issued.

(4) Of Part VI of this Act s. 71(5) as well as ss. 71a and 72 shall apply.

 

Part X.
Other Legal Assistance with the Member States of the European Union

 

Paragraph 1.
General Provisions

 

Section 91
Precedence of Part X

(1) Unless this Part contains specific regulations the remaining provisions of the Act shall apply to other areas of legal assistance with the Member States of the European Union.

(2) This Part shall take precedence before the international agreements mentioned in s. 1(3) insofar as it contains exhaustive regulations.

(3) Ss. 92 to 92b shall also apply in the context of legal assistance to those States who apply the provisions on the Schengen Acquis on the basis of an association agreement with the European Union on the implementation, application and development of the Schengen Acquis (Schengen-associated States).

 

Paragraph 2.
Specific Forms of Legal Assistance

 

Section 92
Transmission of Information Including Personal Data to Member States of the European Union

(1) If a prosecuting authority of a Member State of the European Union so requests on the basis of Council Framework Decision 2006/960/JHA of 18 De-cember 2006 on simplifying the exchange of information and intelligence between law enforcement authorities of the Member States of the European Union (OJ L 386/89 of 29. December 2006, L 75/26 of 15 March 2007) the competent police authorities of the Federation and the Länder may transmit information including personal data for the purposes of the prosecution of criminal offences. The transmission shall follow the same criteria as if it was made to a German domestic police authority. This shall be without prejudice to the regulations under s. 3 of the Bundeskriminalamtgesetz relating to international official contacts by the police of the Federation and the Länder.

(2) A transmission under sub-section (1) above shall contain the notice that the use as evidence in judicial proceedings is inadmissible, unless the granting authority with jurisdiction for such requests under Part V has ap-proved such use. The authority with jurisdiction for such requests under Part V shall also decide on ex-post requests for approval of such use.

(3) The transmission of information including personal data under sub-section (1) above shall be inadmissible, if

1. this would infringe vital security interests of the Federation or the Länder,

2. the data to be transmitted are not stored with the requested authority and can only be obtained through the use of compulsory measures, or

3. the transmission of the data would be disproportionate or the data would not be required for the purposes for which they are to be trans-mitted.

(4) A request under sub-section (1) above may be denied if

1. the data to be transmitted are not stored with the requested authority and can be obtained without the use of compulsory measures, or

2. this would endanger the success of pending investigations or life, limb or liberty of a person or

3. the offence, for the prosecution of which the data are to be transmitted, does under German law carry a penalty of imprisonment not exceeding one year.

(5) Any authority so designated by a Member State of the European Union according to Article 2(a) of the Framework Decision 2006/960/JHA shall be considered a prosecuting authority under sub-section (1) above.

 

Section 92a
Content of Request

A request under s. 92 (1) 1st sentence shall not be admissible unless it contains the following information:

1. The name and address of the requesting prosecuting authority,

2. the offence for the prosecution of which the data are required,

3. a description of the facts underlying the offence,

4. the purpose for which the data are requested,

5. the connection between the purpose for which the information is re-quested and the person to which the information relates,

6. details of the identity of the accused if the investigations are carried out against a known person, and

7. reasons for the assumption that useful information may exist within Germany.

 

Section 92b
Use of Information Including Personal Data Transmitted according to Framework Decision 2006/960/JHA

Information including personal data transmitted under Framework De-cision 2006/960/JHA to a German domestic police authority, must only be used for the purposes of their transmission or to avert a present and sub-stantial danger for public safety. They must not be used for other purposes or as evidence in judicial proceedings unless the transmitting State has approved such use. Conditions imposed by the transmitting State on the use of the data must be complied with.

 

Section 92c
Data Transmission without Request

(1) To the extent that an international agreement or Framework Decision 2006/960/JHA so provide, public authorities may transmit without request personal data that give rise to the suspicion that an offence has been committed, to public authorities of another Member State of the European Union or a Schengen-associated State as well as organs and institutions of the European Union, if

1. a transmission without request to a German court or prosecution service were permissible and

2. the transmission is useful in

a) initiating criminal proceedings in another Member State or

b) assisting criminal proceedings already pending there and

3. the authority to whom the data are transmitted has jurisdiction for the measures under no. 2 above.

(2) S. 61a(2) to (4) shall apply mutatis mutandis.

 

Section 93
Joint Investigation Teams

(1) A member of the joint investigation team seconded by a Member State of the European Union may be allowed to conduct investigations under the supervision of the relevant German team member if this has been previously approved by the sending Member State.

(2) Other persons may participate in the joint investigation team based on the law of the participating Member States or any agreement between them.

(3) The German officers participating in the joint investigation team may directly transmit information obtained in the execution of their office, including personal data, to the members sent by other Member States, in-sofar as this is necessary for the work of the joint investigation team.

(4) Insofar as the transmission of the information obtained under subsec-tion (3) above requires a specific agreement amending the purpose of its use such an agreement is admissible if a request for the use of the information was admissible.

 

Section 94
Requests for Freezing, Seizure and Search

(1) Ss. 58(3) and 67 shall apply to requests pursuant to Council Frame-work Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence (OJ L 196/45) with the proviso

1. that double criminality shall not need to be established if the offence on which the request is based is under the law of the requesting State punishable by a custodial sanction with a maximum term of no less than three years and is listed in one of the categories of offences listed in arti-cle 3(2) of the Council Framework Decision 2003/577/JHA,

2. that a request in tax, duties, customs and currency matters shall also be admissible if the German law does not provide for equivalent taxes or duties or does not contain similar tax, duties, customs or currency provisions as the law of the requesting Member State.

(2) The granting of requests under subsection (1) above shall be inad-missible if

1. a ban on seizure exists pursuant to s. 77(1) in conjunction with s. 97 of the Strafprozessordnung or

2. the convicted person has already been finally tried for the same offence on which the request is based by another State than the requesting Member State provided that the sanction has already been enforced, is currently being enforced or can no longer be enforced under the law of the convicting State.

This shall not apply if the request serves the preparation of an order for confiscation or deprivation and if deprivation or confiscation could have been ordered separately under s. 76a of the Strafgesetzbuch.

(3) The granting of requests for measures under s. 58(3) and s. 67 may be stayed as long as

1. it could jeopardise ongoing criminal investigations and

2. the objects to which the request attaches have been seized or otherwise secured for other criminal proceedings.

 

Section 95
Documentation for Freezing Requests

(1) Requests pursuant to Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence shall not be granted unless the request is accompanied by a certificate containing the following data:

1. Name and address of the issuing justice authority;

2. the description of the asset or piece of evidence the freezing of which is requested;

3. the description, as precisely as possible, of the natural or legal person who is suspected of the offence under the law of the requesting State;

4. an explanation of the reasons for the freezing order;

5. a description of the circumstances of the offence, including the time and place of the offence and

6. the nature and legal characterisation of the offence, including the provi-sions underlying the freezing order.

(2) If a certificate pursuant to subsection (1) above has not been submitted or is at the time of submission of the request incomplete or does clearly not correspond to the freezing order the competent authority may set a deadline for submission, completion or correction. If the certificate pursuant to subsection (1) above is incomplete the competent authority may waive the submission of a complete certificate if the required data can be gathered from the freezing order.

 

Section 96
Duty to Grant Freezing Measures

Requests by a Member State which are admissible under ss. 94 and 95 shall be granted. If a request is refused for lack of admissibility, the refusing decision shall contain the reasons therefore.

 

Section 97
Requests for Handing Over of Evidence

S. 94(1) shall apply mutatis mutandis to requests by Member States for the handing over of objects which may serve as evidence in proceedings in the requesting Member State and which may be seized or otherwise secured pursuant to Council Framework Decision 2003/577/JHA of 22 July 2003 on the execution in the European Union of orders freezing property or evidence.

 

Part XI.
Final Provisions

 

Section 98
Reservation as to Application; Operational Date

The provisions of Paragraph Two of Part IX on the enforcement of fi-nancial penalties pursuant to Council Framework Decision 2005/214/JHA of 24 February 2005 on the application of the principle of mutual recognition to financial penalties (OJ L 76/16 of 22 March 2005) shall in the case of financial penalties under s. 87(2) no. 1 apply only if they became final after 27 October 2010. In the case of financial penalties under s. 87(2) nos. 2 and 3 the provisions mentioned in the 1st sentence above shall apply only if the non-judicial decision imposing the financial penalty was issued after 27 October 2010.

 

Section 99
Restriction of Fundamental Constitutional Rights

The fundamental constitutional rights relating to the protection of bodily integrity (Article 2(1) 1st sentence of the Grundgesetz), personal privacy and freedom (Article 2(2) 2nd sentence of the Grundgesetz), the secret of letters, postal and telecommunications (Article 10(1) of the Grundgesetz), inviolability of the home (Article 13 of the Grundgesetz) and protection from extradition (Article 16(2) 1st sentence of the Grundgesetz) shall be restricted in accordance with this Act.

 

Glossary

Translation* of the names of courts, public authorities, acts of legislation etc.

• Abgabenordnung*: (abbrev. AO) Tax Code.

• Amtsgericht: (abbrev. AG) Local Court i. e. Lowest trial court for criminal and civil matters.

• Auswärtiges Amt: (abbrev. AA) Foreign Office; part of the Federal Govern-ment.

• Bundesamt für Justiz: (abbrev. BAJustiz) Federal Office of Justice; central service authority of the federal German judiciary and port of call for international legal affairs.

• Bundesgerichtshof: (abbrev. BGH) Federal High Court, i. e. Court of Final Appellate Jurisdiction in Civil and Criminal Matters; sits in senates (Se-nate).

• Bundesgesetzblatt: (abbrev. BGBl.) Federal Official Gazette (sometimes referred to as „Federal Law Gazette“); contains federal legislation, inter-national treaties and decisions by the Federal Constitutional Court that have the force of an Act of Parliament.

• Bundeskasse: Federal Public Funds Office.

• Bundeskriminalamt: (abbrev. BKA) Federal Criminal Police.

• Bundeskriminalamtgesetz: (abbrev. BKAG) Federal Criminal Police Act.

• Bundesministerium der Justiz: (abbrev. BMJ) Federal Ministry of Justice.

• Bundesregierung: (abbrev. BReg.) Federal Government.

• Bundesverfassungsgericht: (abbrev. BVerfG) Federal Constitutional Court.

• Bundeszentralregister: (abbrev. BZR) Federal Central Criminal Register.

• Bundeszentralregistergesetz: (abbrev. BZRG) Federal Central Criminal Register Act.

• Einführungsgesetz zum GVG: (abbrev. EGGVG) Court Organisation (Intro-duction) Act.

• Generalbundesanwalt: (abbrev. GBA) Federal Prosecutor General; repre-sents the prosecution before the Bundesgerichtshof, in some cases before the Oberlandesgericht when sitting as a trial court of first instance.

• Gerichtsverfassungsgesetz*: (abbrev. GVG) Constitution of Courts Act: deals with the structure and jurisdiction of courts.

• Gesetz zum Schutz deutschen Kulturgutes gegen Abwanderung*: (abbrev. Kultg¬SchG) Act to Prevent the Exodus of German Cultural Property.

• Grundgesetz*: (abbrev. GG) The German Federal Constitution, often trans-lated by „Basic Law“.

Act on Identity Cards and Electronic Identification

Part 1
General provisions

 

Section 1
Identification requirement; law on identification documents

(1) Germans as defined in Article 116 (1) of the Basic Law shall be required to possess an identity card once they have reached the age of 16 and are subject to the general registration requirement, or if not subject to this requirement, then if they mainly reside in Germany. They must present their identity card at the request of an authority entitled to check identification. Identity card holders may not be required to deposit their identity card or otherwise surrender possession. This shall not apply to authorities entitled to check identification nor in case of withdrawal or confiscation.

(2) The identification requirement shall also apply to persons subject to a special registration requirement under state laws on registration as masters of inland vessels or as seamen. It shall not apply to persons serving a custodial sentence. Persons with a valid passport as defined in Section 1 (2) of the Passport Act may satisfy the identification requirement under subsection 1 first and second sentence also by possessing and presenting their passport.

(3) The responsible identity card authority under Section 7 (1) and (2) may waive the identification requirement for certain persons

1. for whom a guardian has been appointed not only by provisional order, or who are incapable of acting or giving consent and are represented by an authorized representative having a notarially certified power of attorney,

2. who are permanent residents of a hospital, nursing home or similar facility, or

3. who are unable to travel without assistance due to a permanent disability.

(4) Upon application, an identity card shall be issued for

1. persons under age 16, and

2. Germans as defined in Article 116 (1) of the Basic Law who are not subject to the general registration requirement because they have no residence in Germany.

 

Section 2
Definitions

(1) Identity cards as defined in this Act shall be the national identity card and the temporary national identity card.

(2) As defined in this Act, authorities entitled to check identification shall be public bodies authorized to determine the identity of persons as a official measure to fulfil their legally assigned duties.

(3) Service providers shall be natural and legal persons who, to carry out tasks of the public administration or for own business purposes, require proof of identity or individual identifying features of the identity card holder and who have their place of residence, business or office within the geographical area covered by Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data or in other countries having a comparable standard of data protection.

(4) An authorization certificate shall be an electronic certificate which enables a service provider

1. to verify its identity vis-à-vis the identity card holder and

2. to request the transmission of personal and identity-card-related data from the identity card.

Authorized service providers shall be issued authorization certificates. Authorities entitled to check identification shall be issued official authorization certificates to be used only for the official task of checking identification.

(5) A service- and card-specific identifier shall be a series of characters generated in the storage and processing medium of the identity card. It shall allow the service provider to electronically identify the identity card for which it was generated without having to transmit additional personal data.

(6) The blocking code shall be a series of characters used only to block lost or stolen identity cards whose electronic identification function has been activated.

(7) Blocking attributes of an identity card shall be service- and card-specific series of characters which the service provider for whom they were generated use only to identify lost or stolen identity cards.

(8) Each identity card shall be issued a new serial number. The serial number of an identity card shall consist of a four-digit authority ID number and a five-digit, randomly assigned number, and may include both numerals and letters. The serial number of a temporary identity card shall consist of one letter and seven numerals.

(9) The check digits shall be generated from the data of the machine-readable area and shall serve as an indication of its integrity.

(10) The PIN code shall be a six-digit number used to approve the transmission of data from the identity card for the purpose of electronic identification.

(11) The access code shall be a randomly generated six-digit number printed on the card to protect against unauthorized interception of communications between the identity card and card readers.

(12) The PUK code shall be a randomly generated number to unblock the identity card after the incorrect PIN code has been entered three times in succession.

 

Section 3
Temporary identity cards

(1) A temporary identity card shall be issued to any applicant who provides a credible reason for immediately requiring an identity card.

(2) Only the authorities specified in Section 7 (1) shall be responsible for issuing temporary identity cards.

 

Section 4
Ownership; card manufacturer; authority responsible for issuing authorization certificates

(1) No one may have more than one valid identity card issued by the Federal Republic of Germany.

(2) Identity cards shall be the property of the Federal Republic of Germany.

(3) The Federal Ministry of the Interior shall determine the card manufacturer, the authority responsible for issuing authorization certificates and the administrator of revocation lists and shall publicize their names in the Federal Gazette.

 

Section 5
Models; stored data

(1) Identity cards shall be issued in accordance with uniform models.

(2) In addition to the issuing authority, date of issue, date of expiry, access number and the data listed in subsection 4 second sentence, identity cards shall clearly indicate only the following information about the card holder:

1. family name and name before marriage,

2. given names,

3. doctoral degree

4. date and place of birth,

5. photograph,

6. signature,

7. height,

8. eye colour,

9. address; in case of an address outside Germany, then the statement "no main residence in Germany",

10. nationality,

11. serial number, and

12. religious name / stage or pen name.

(3) Temporary identity cards shall include the information in subsection 2 nos. 1 through 12 as well as the issuing authority, date of issue and date of expiry.

(4) Identity cards shall have a machine-readable area. This area shall contain only the following clearly printed information:

1. Abbreviations

a) "IDD" for identity card of the Federal Republic of Germany or

b) "ITD" for temporary identity card of the Federal Republic of Germany,

2. family name,

3. given names,

4. serial number,

5. "D" for German nationality,

6. date of birth,

7. date of expiry,

8. check digits, and

9. empty spaces.

When verifying identity pursuant to Section 17, the printed access code may be machine-read as well.

(5) Identity cards shall contain an electronic storage and processing medium on which the following data shall be stored:

1. the data listed in subsection 2 nos. 1 through 5, 9 and 12.

2. the data of the machine-readable area according to subsection 4 second sentence, and

3. fingerprints pursuant to subsection 9 and information on which fingers were used for fingerprinting and on the quality of the prints.

(6) The stored data shall be secured against unauthorized alteration, deletion and retrieval.

(7) In derogation from subsection 5, children under age 6 shall be issued identity cards with an electronic storage and processing medium on which only a photograph and the data of the machine-readable area according to subsection 4 second sentence are stored.

(8) The serial number, check digits, blocking code and blocking attributes may not contain any of the identity card holder’s personal data or reference to such data.

(9) Fingerprints shall be stored only at the request of the card applicant. The applicant’s fingerprints shall be stored on the identity card’s electronic storage and processing medium as flat prints of the left and right index fingers. In case of a missing index finger, injured fingertip or poor-quality print, a flat print of the thumb, middle or ring finger shall be stored instead. Fingerprints shall not be stored if it is not possible to take prints for medical reasons of a more than temporary nature.

(10) The data stored on the electronic storage and processing medium shall also enable the electronic identification function pursuant to Section 18.

 

Section 6
Length of validity; early application; geographical restrictions

(1) Identity cards shall be valid for a period of ten years.

(2) Before an identity card expires, the card holder may apply for a new one if he or she demonstrates a legitimate interest in having a new one issued.

(3) For persons under age 24, identity cards shall be valid for a period of six years.

(4) The length of validity for temporary identity cards shall be based on the purpose of use; it may not exceed three months.

(5) The length of validity shall not be extended.

(6) In the cases referred to in Section 29 of the Nationality Act, an identity card shall not be valid past the holder’s 23rd birthday until the responsible authority has determined whether the holder may retain his/her German citizenship.

(7) In accordance with the requirements of Section 7 (1) of the Passport Act, the responsible authority may order in individual cases that the identity card does not entitle the holder to leave Germany.

(8) Orders pursuant to subsection 7 may be recorded in the border police database.

 

Section 7
Administrative responsibility

(1) The identity card authorities designated by the Länder shall be responsible for matters related to identity cards in Germany.

(2) The Federal Foreign Office and its designated diplomatic missions abroad shall be responsible for matters related to identity cards outside Germany.

(3) The identity card authorities, diplomatic missions abroad and authorities entitled to make official checks of identification shall be responsible for withdrawal pursuant to Section 29 (1) and for confiscation pursuant to Section 29 (2).

(4) The authority responsible for issuing authorization certificates pursuant to Section 4 (3) shall be responsible for issuing and suspending certificates pursuant to Section 21. The administrator of revocation lists pursuant to Section 4 (3) shall be responsible for keeping a revocation list pursuant to Section 10 (4) first sentence.

(5) The bodies responsible for compliance with data protection regulations shall be responsible for service providers in Germany. If service providers have their place of residence, business or office outside Germany, the Federal Commissioner for Data Protection and Freedom of Information shall be the responsible data protection supervisory authority as referred to in Section 21 (5) third sentence.

 

Section 8
Local responsibility; lack of local responsibility

(1) In Germany, the identity card authority in the district in which the identity card applicant or holder is required to register his/her residence or main residence shall have local responsibility. If the applicant does not have a place of residence, then the identity card authority in the district where the applicant is temporarily staying shall have local responsibility.

(2) Outside Germany, the diplomatic missions abroad designated by the Federal Foreign Office in the district in which the identity card applicant or holder is usually resident shall have local responsibility. Identity card holders shall provide proof of their usual place of residence.

(3) For masters of inland vessels who have no residence in Germany, the identity card authority of the place where the vessel is registered shall have local responsibility; for seamen who have no residence in Germany, the identity card authority of the place where the vessel’s owner has its headquarters shall have local responsibility.

(4) An identity card application must also be processed by an identity card authority which does not have local responsibility if there is a compelling reason to do so. Identity cards may be issued only with the permission of the locally responsible identity card authority.

 

Part 2
Issuing and blocking the identity card

 

Section 9
Issuing the identity card

(1) Identity cards shall be issued upon application to Germans within the meaning of Article 116 (1) of the Basic Law. Section 3a (1) of the Administrative Procedure Act shall not apply. During the application process, information to be provided following the initial application may be submitted electronically. An authorized representative may not file an identity card application on behalf of the passport applicant or his/her legal representative. This shall not apply to an applicant who is unable to act or provide consent, upon presentation of a power of attorney which has been publicly certified or notarized for this purpose. The applicant and his legal or authorized representative are to appear in person.

(2) For minors under age 16 and for persons who are legally incapable and who do not have an authorized representative in accordance with subsection 1 fifth sentence, the only person who may file an application on their behalf is the custodial adult responsible for supervising their residency. After the minor’s 16th birthday and before his or her 18th birthday, the custodial adult shall be required to submit an application for an identity card if the minor fails to do so. Minors 16 years old or older may undertake proceedings pursuant to this Act.

(3) This application shall include all information needed to confirm the applicant’s identity and status as a German citizen. Information about doctoral degrees attained and any religious, stage or pen names shall be voluntary. The applicant shall supply the necessary supporting documents. When submitting an application, applicants shall indicate in writing whether their fingerprints are to be stored on the storage and processing medium of the identity card. If the applicant decides against storing his/her fingerprints, this shall result in no legal or factual disadvantages other than that procedures for verifying identity by checking fingerprints cannot be used. Applicants shall be informed in writing of this and of the fact that storing fingerprints is voluntary. If fingerprints are to be stored on the identity card, they are to be taken from the applicant and captured electronically in accordance with Section 5 (9). No fingerprints of children under age 6 shall be taken.

(4) In case of doubt regarding the applicant’s identity, the necessary measures to establish his/her identity shall be taken The identity card authority may arrange to have applicants photographed and fingerprinted by the police if it would otherwise be impossible or extremely difficult to determine the applicant’s identity. Once the applicant’s identity has been established, any documents collected for the purpose of establishing such identity shall be destroyed. The fact that these documents have been destroyed shall be recorded.

(5) A child aged 10 or over at the time the application is made shall sign his/her own identity card.

 

Section 10
Deactivating; activating; blocking and unblocking the electronic identification function

(1) When applicants pick up their identity cards, they shall state in writing to the identity card authority whether they intend to use the electronic identification function. Card holders may change this statement at any time during the card’s period of validity by writing to the identity card authority. If applicants do not wish to use the electronic identification function, the identity card authority shall deactivate this function. If the application is submitted at a diplomatic mission abroad, the applicant shall submit his/her statement with the application for an identity card.

(2) The card manufacturer shall deactivate the electronic identification function before the identity card is handed over if applicants have not yet turned 16 at the time of application. The same shall apply when the statement pursuant to subsection 1 fourth sentence is submitted at a diplomatic mission abroad and the applicant has declared that he/she does not wish to use the electronic identification function.

(3) During the card’s period of validity, card holders aged 16 and over may request to have a deactivated electronic identification function activated. They may also request to have an activated electronic identification function deactivated.

(4) The administrator of revocation lists pursuant to Section 7 (4) second sentence shall provide, via public communication channels available at all times, every service provider with a current list (revocation list), drawn up specifically for that service provider, of lost or stolen identity cards having an activated electronic identification function. Service providers shall regularly consult their revocation lists and check them locally with regard to the electronic identification function against identity cards to be accepted.

(5) If the issuing identity card authority becomes aware that

1. an identity card with an activated electronic identification function has been lost or stolen, or

2. a card holder has passed away,

it shall immediately inform the administrator of revocation lists pursuant to Section 7 (4) second sentence of the blocking code for the identity card in question, for the purpose of updating the revocation list.

(6) A card holder whose identity card having an activated electronic identification function has been lost or stolen may also report the blocking code to the administrator of revocation lists pursuant to Section 7 (4) second sentence in order to immediately block the electronic identification function. The requirement to report the loss or theft of the identity card to the identity card authority in accordance with Section 27 (1) no. 3 shall remain unaffected.

(7) The administrator of revocation lists pursuant to Section 7 (4) second sentence shall provide a blocking service, via public communication channels available at all times, to the identity card authorities for the cases pursuant to subsection 5 and to card holders for the cases pursuant to subsection 6.

(8) If, after blocking has been carried out in accordance with subsection 5 or 6, the card holder reports in accordance with the conditions of Section 9 (1) sixth sentence that the identity card has been located and presents the card, the identity card authority shall request the administrator of revocation lists pursuant to Section 7 (4) second sentence to unblock this identity card. The requirement of the card holder to present the identity card after locating it in accordance with Section 27 (1) no. 3 shall remain unaffected.

(9) The identity card authority or the police shall record the time the loss or theft of the identity card was reported and shall inform the issuing identity card authority.

 

Section 11
Information obligations

(1) At the card holder’s request, the identity card authority shall allow the card holder to inspect the retrievable data stored on the electronic storage and processing medium.

(2) At the time of application, the identity card authority shall provide card applicants with information on the electronic identification function, so that they are prepared to make the statement referred to in Section 10 (1).

(3) The identity card authority shall inform card applicants in writing of the measures necessary to ensure the secure use of the electronic identification function.

(4) Card applicants shall confirm in writing that they have read and understood the information referred to in subsections 2 and 3.

(5) Identity card authorities that become aware of the loss or theft of an identity card shall immediately inform the responsible identity card authority, the issuing identity card authority and the police; if the police otherwise become aware of the loss or theft of an identity card, they shall immediately inform the responsible and the issuing identity card authorities. In doing so, they shall provide the family name, given names, serial number, issuing identity card authority, date of issue and date of expiry of the identity card. The police shall enter the identity card in their register of missing and stolen property.

(6) If an identity card authority that is not responsible pursuant to Section 8 (4) issues an identity card, it shall provide the responsible identity card authority with the family name, given names, date and place of birth, issuing identity card authority, date of issue, date of expiry and serial number of the card.

(7) An identity card authority shall inform the issuing identity card authority immediately whenever it activates or deactivates the electronic identification function.

 

Section 12
Forms and procedures for collecting, checking and transmitting data

(1) Data needed for the production of identity cards, in particular all data from identity card applications, shall be sent from the identity card authorities to the card manufacturer via electronic data transmission. The data may also be transmitted via intermediary agencies. The bodies concerned shall take state-of-the-art measures to ensure data protection and data security, in particular to guarantee the confidentiality and integrity of the data and the identification of the transmitting body; when publicly accessible networks are used, state-of-the-art encryption methods shall be applied.

(2) For the electronic capture and quality assurance of the photograph and fingerprints, and for transmission of identity card application data from the identity card authority to the card manufacturer, only those technical systems and components may be used which meet the requirements of Section 34 no. 3 of the statutory instrument. The Federal Office for Information Security shall ensure compliance with the requirements in accordance with Section 34 no. 4 of the statutory instrument.

 

Section 13
Transmitting PIN codes, PUK codes and blocking codes

The card manufacturer shall send card applicants the PIN code, PUK code and blocking code for the identity card in order to use, block and unblock the electronic identification function. The PIN code shall be sent separately from the other documents. If the card applicant presents legitimate grounds for doing so, the documents referred to in the first sentence shall be sent to the identity card authority which hands out the identity card. This authority shall provide the card holder with the documents. The identity card authority shall inform the card holder of the risks of this process at the time of application.

 

Part 3
Personal data

 

Section 14
Collecting and using personal data

Personal data may be collected and used from or with the help of the identity card only by

1. authorities entitled to check identification in accordance with Sections 15 through 17,

2. public- and private-sector bodies in accordance with Sections 18 through 20.

 

Section 15
Automated retrieval and storage by authorities entitled to check identification

(1) Authorities entitled to check identification may not use identity cards for the automated retrieval of personal data. In derogation from the first sentence, federal and state police authorities and offices, customs administration authorities and state tax investigation units may, within the framework of their duties and powers, use identity cards for the automated retrieval of personal data stored in police databases for the following purposes:

1. border control,

2. alerts or to establish a person’s whereabouts for the purpose of criminal prosecution, enforcement of a criminal sentence or to prevent threats to public security, and

3. customs control as part of police surveillance.

No subject-related record of database searches that have not yielded any results may be kept, except as provided in legal provisions enacted in accordance with subsection 2.

(2) In the cases referred to in subsection 1, unless the law provides otherwise, personal data may not be stored in databases when the identity card is read automatically; this shall also apply to searches of police databases that have yielded results.

 

Section 16
Use of serial numbers, blocking codes and blocking attributes by authorities entitled to check identification

Authorities entitled to check identification may not use serial numbers, blocking codes or blocking attributes in such a way that they can be used to enable the automated retrieval of personal data or to establish connections between data files. In derogation from the first sentence, the following may use serial numbers for the following purposes:

1. identity card authorities in order to retrieve personal data from their databases, and

2. federal and state police authorities and offices, state tax investigation units and the agencies of the customs investigation service in order to retrieve the serial numbers of identity cards which have been lost or declared invalid or which are suspected of being used by unauthorized persons.

 

Section 17
Checking identity using data stored on the electronic storage and processing medium

Authorities entitled to check identification may retrieve and use data stored on the electronic storage and processing medium of the identity card only for the purpose of checking the authenticity of the document or the identity of the card holder and only in accordance with the third and fourth sentences. Checks of authenticity or identity via public communication channels shall not be permitted. If the law enforcement or customs authorities, state tax investigation units, identity card, passport or registration authorities may check the authenticity of the identity card or the identity of the card holder, they shall be authorized to retrieve biometric and other data stored on the electronic storage and processing medium of the identity card, to collect the necessary biometric data from the identity card holder and to compare these biometric data. The data collected in accordance with the third sentence shall be erased immediately after the authenticity of the identity card or the identity of its holder has been checked.

 

Section 18
Electronic identification

(1) Identity card holders aged 16 or over may use their identity cards to verify their identity vis-à-vis public and private-sector bodies electronically. In derogation from the first sentence, electronic identification shall not be permitted if the conditions of Section 3a (1) of the Administrative Procedure Act, of Section 87a (1) first sentence of the German Fiscal Code or Section 36a (1) of the Social Code, First Book are not met.

(2) Electronic identification shall take place via transmission of data from the electronic storage and processing medium of the identity card. State-of-the-art technical measures shall be taken to ensure data protection and data security, in particular ensuring data confidentiality and integrity. If generally accessible networks are used, encryption shall be applied. Persons other than the identity card holder shall not be permitted to use the electronic identification function.

(3) The blocking attribute and the indication as to whether the identity card is valid shall always be transmitted for checking whether the identity card has expired or been blocked. The following additional data may be transmitted:

1. family name,

2. given names,

3. doctoral degree

4. date of birth,

5. place of birth,

6. address,

7. type of document,

8. service- and card-specific identifier,

9. the abbreviation “D” for the Federal Republic of Germany,

10. indication whether the card holder is older or younger than a particular age,

11. indication whether a place of residence matches the requested place of residence, and

12. religious name / stage or pen name.

(4) Data shall be transmitted only if the service provider transmits a valid authorization certificate to the identity card holder, who then enters his/her PIN code. Before the card holder enters the PIN code, the following information from the authorization certificate must be transmitted for display:

1. name, address and e-mail address of the service provider,

2. categories of data to be transmitted pursuant to subsection 3 second sentence,

3. purpose of the transmission,

4. indication of the bodies responsible for the service provider checking compliance with data protection regulations,

5. the authorization certificate’s date of expiry.

(5) Transmission shall be limited to the data categories listed on the authorization certificate. In individual cases, the identity card holder may refuse the transmission of data also in these categories.

 

Section 19
Storage using electronic identification

(1) It shall be permitted to save a blocking attribute only

1. for lost or stolen identity cards on the revocation list pursuant to Section 10 (4) first sentence, or

2. temporarily with the service provider to check whether the identity card is listed on the revocation lists pursuant to Section 10 (4) first sentence; the data shall be erased immediately after checking. To enable repeated checks as to whether the identity card is listed on the revocation lists pursuant to Section 10 (4) first sentence, in derogation from this provision a service provider verifying identity in accordance with the Money Laundering Act, the Electronic Signature Act or the Telecommunications Act shall not erase a saved blocking attribute until one week after it was first saved.

(2) It shall be permitted to save a blocking code only in the identity card register pursuant to Section 23 (3) no. 12.

(3) It shall not be permitted to save all blocking codes or all blocking attributes centrally.

(4) Data transmitted to service providers for technical reasons or for comparison with the revocation list while checking identity electronically may be saved only for the length of transmission. Processing of data pursuant to Section 18 (3) second sentence shall remain unaffected.

 

Section 20
Use by public- and private-sector bodies

(1) The card holder may use the identity card as proof of identity and authorization document vis-à-vis public- and private-sector bodies.

(2) Public- and private-sector bodies may use the identity card only to verify identity electronically and not for the automated retrieval or storage of personal data.

(3) Serial numbers, blocking codes and blocking attributes may not be used to enable the automated retrieval of personal data or to link data files. This shall not apply to service providers checking blocking attributes for the purpose of checking whether an identity card’s electronic identification function has been blocked.

 

Part 4
Authorizations; electronic signature

 

Section 21
Issuing and suspending authorizations of service providers

(1) Under the conditions of subsection 2, upon written application service providers shall be authorized to request the data necessary to perform their tasks or business via electronic identification of the identity card holder using an authorization certificate. The responsible body pursuant to Section 7 (4) first sentence shall issue the authorizations to service providers in accordance with the following provisions, and shall issue service providers with the necessary authorization certificates via public communication channels available at all times. The application shall contain the data pursuant to Section 18 (4) second sentence nos. 1 through 4.

(2) Authorization pursuant to subsection 1 shall be issued if

1. the purpose given is not unlawful;

2. the purpose does not consist of commercial transmission of the data, and no indications of commercial or unauthorized transmission of the data exist;

3. the service provider submitting the application has demonstrated the need for the data to be transmitted for the purpose described;

4. the requirements, in particular of data protection and data security, in accordance with Section 34 no. 7 of the statutory instrument, are met; and

5. there are no indications that the authorization will be misused.

The service provider shall voluntarily agree to confirm the requirements pursuant to no. 4 in writing and to demonstrate compliance upon request.

(3) The authorization shall be valid for a limited period. The length of validity may not exceed three years. The authorization may be used only by the service provider specified in the authorization certificate and only for the purpose specified therein. The authorization may be made subject to additional conditions and renewed upon application.

(4) Changes to the data and information pursuant to subsection 1 third sentence shall be reported immediately to the responsible body pursuant to Section 7 (4) first sentence.

(5) The authorization shall be withdrawn if it was issued on the basis of false or incomplete information given by the service provider. It shall be revoked if it should not have been issued at all or not with the same extent. The authorization should be withdrawn or revoked if the data protection supervisory authority responsible for the service provider so requests because there is reason to believe that the service provider has unlawfully processed or used personal data received on the basis of the authorization certificate.

(6) After notification that the authorization has been withdrawn or revoked, the service provider may no longer use any authorization certificates in its possession. This shall not apply as long and to the extent that immediate enforcement (Section 30) has been suspended.

 

Section 22
Electronic signature

Identity cards shall be designed as secure signature creation devices as referred to in Section 2 no. 10 of the Electronic Signature Act. The provisions of the Electronic Signature Act shall remain unaffected.

 

Part 5
Identity card register; storage provisions

 

Section 23
Identity card register

(1) The identity card authorities shall keep a register of identity cards.

(2) The identity card register shall serve the implementation of this Act, in particular

1. issuing identity cards and verifying their authenticity,

2. verifying the identity of the card holder or the person to whom the card was issued,

(3) In addition to the photograph and signature of the card holder and the necessary processing notes, the identity card register shall contain only the following data:

1. family name and name before marriage,

2. given names,

3. doctoral degree

4. date of birth,

5. place of birth,

6. height,

7. eye colour,

8. address,

9. nationality,

10. family name, given name(s), date of birth and signature of legal representatives,

11. serial number,

12. blocking code,

13. date of expiry,

14. issuing authority,

15. notes on instructions pursuant to Section 6 (7),

16. information concerning the card holder’s obligation to furnish a declaration pursuant to Section 29 of the Nationality Act,

17. whether the identity card’s electronic identification function has been deactivated and whether the identity card is on the revocation list,

18. religious name, stage or pen name and

19. statement of authorization issued pursuant to Section 8 (4) second sentence.

(4) Personal data in the identity card register shall be kept at least until a new identity card is issued but no longer than five years after the identity card in question has expired, when they shall be deleted. Identity card authorities pursuant to Section 7 (2) with consular responsibilities shall retain such data for 30 years.

(5) The responsible identity card authority shall provide proof of identity cards for which it issued authorization pursuant to Section 8 (4) second sentence.

 

Section 24
Use of data stored in the identity card register

(1) Identity card authorities may collect, transmit, otherwise process or use personal data only in accordance with this or other Acts or statutory instruments.

(2) Identity card authorities may transmit data in the identity card register to other authorities at their request if

1. the requesting authority is authorized by law or statutory instrument to receive such data,

2. the requesting authority would not be able to fulfil its assigned duties without knowledge of the data, and

3. the data cannot be obtained from the data subject without unreasonable effort, or the nature of the task for which the data are required means that the data cannot be collected in this way.

With regard to data which are also kept in the civil register, the restrictions contained in the legislation on registration must be respected.

(3) The requesting authority shall be responsible for ensuring that the conditions in subsection 2 are met. Only those staff who are specially authorized by the head of the authority may submit requests pursuant to subsection 2. The requesting authority shall keep a record of the reason for the request and the source of the data and files transmitted. If the Federal Office for the Protection of the Constitution, the state offices for the protection of the Constitution, the Federal Intelligence Service, the Military Counterintelligence Service, the Federal Criminal Police Office or the Federal Public Prosecutor requests the identity card authority to transmit data, the requesting authority shall record the family and given name and address of the data subject and the reason for the transmission of data. Such records shall be retained separately, secured using technical and organizational means and destroyed at the end of the calendar year following the year in which the data were transmitted.

(4) Data from the identity card register may be used to correct data in the civil register and vice versa.

 

Section 25
Electronic data transmission and automated retrieval of photographs

(1) In the cases covered by Section 24 (2), personal data may also be transmitted electronically. Section 12 (1) third sentence shall apply mutatis mutandis.

(2) The police and public order authorities, the state tax investigation units and the customs administration authorities may retrieve photographs using automated procedures in order to prosecute crimes and traffic offences if the identity card authority is otherwise unavailable and further delay would jeopardize the purpose of the investigation. Law enforcement agencies at the county level, to be designated by state law, shall be responsible for retrieval. The retrieving authority shall be responsible for ensuring that the conditions in subsections 1 and 2 first sentence are met. The participating authorities shall keep a record of all retrievals so that their permissibility can be checked. The records shall contain

1. family and given names and date and place of birth of the person whose photograph was retrieved,

2. the date and time of retrieval,

3. the offices involved in the retrieval,

4. the name of the persons who conducted and authorized the retrieval, and

5. the file reference.

Section 24 (3), fifth sentence shall apply mutatis mutandis.

 

Section 26
Other storage of personal data

(1) Application for, issuance of and handing over of identity cards may not serve as a reason to store the necessary information and biometric features anywhere but by the issuing identity card authorities pursuant to Section 7 (1) and (2) according to the provisions of Sections 23 through 25. The same shall apply to the accompanying documents necessary for issuing identity cards and to the personal storage medium.

(2) Fingerprint records stored by the identity card authority shall be erased at the latest when the identity card is handed over to the card applicant.

(3) Only the card manufacturer shall be allowed to keep a central record of all serial numbers; such a record shall be used only to keep track of the whereabouts of identity cards. It shall be unlawful for the card manufacturer to store any other personal data of the card applicant unless they are exclusively and temporarily needed for manufacturing the identity card; these data shall be subsequently erased.

(4) No nationwide database of biometric features shall be established.

 

Part 6
Obligations of identity card holders; invalidity and withdrawal of identity cards

 

Section 27
Obligations of identity card holders

(1) Identity card holders shall be obligated to do the following without delay:

1. present their identity card to the identity card authority if the card contains incorrect information;

2. surrender their old identity card to the identity card authority upon receipt of a new identity card;

3. report lost identity cards to the identity card authority and, if it is found, present it to the identity card authority;

4. inform the identity card authority of any foreign citizenship acquired; and

5. inform the identity card authority of any voluntary service in the armed forces or similar organization of a foreign country of which they are citizens.

(2) The identity card holder shall take reasonable measures to ensure the confidentiality of the PIN code. In particular, card holders should not note the PIN code on the identity card or store the PIN code together with the card. If the card holder knows that the PIN code has been disclosed to a third party, he or she should immediately change the PIN code or have the electronic identification function blocked.

(3) Identity card holders should take technical and organizational measures to ensure that the electronic identification function in accordance with Section 18 is used only in an environment considered secure in accordance with the state of the art. Card holders should use in particular those technical systems and components certified by the Federal Office for Information Security as secure for this purpose.

 

Section 28
Invalid identity cards

(1) An identity card shall be invalid if

1. it has been altered or does not allow the card holder’s identity to be established without doubt;

2. it lacks information mandated by this Act, or the information (other than height or place of residence) is incorrect;

3. the date of expiry has passed.

(2) An identity card authority shall declare an identity card invalid if the requirements for issuing the card were not met or no longer apply.

(3) Disruptions to the function of the electronic storage and processing medium shall not affect the validity of the identity card.

 

Section 29
Seizure and confiscation

(1) An identity card which is invalid under Section 28 (1) or (2) may be confiscated.

(2) An identity card may be confiscated if

1. it is held by an unauthorized person, or

2. there is reason to believe the conditions for confiscation under subsection 1 have been met.

(3) Seizure and confiscation shall be confirmed in writing.

 

Section 30
Immediate effect

Objections, actions to rescind the order that the identity card shall not entitle the holder to leave Germany (Section 6 (7)), actions opposing the suspension of authorization (Section 21 (5)), actions opposing confiscation (Section 29 (1)) and opposing seizure of the identity card (Section 29 (2)) shall have no suspensive effect.

 

Part 7
Fees and expenses; fines

 

Section 31
Fees and expenses

(1) Fees and expenses shall be charged for official acts in accordance with this Act and with regulations based on this Act to cover the administrative costs.

(2) In order to compensate for differences in buying power, the Federal Foreign Office may reduce or add a surcharge of up to 300% on fees and expenses collected by the Federal Republic of Germany’s diplomatic missions abroad for official acts pursuant to subsection 1.

 

Section 32
Fines

(1) Anyone shall be deemed to have committed an administrative offence who

1. does not possess an identity card in violation of Section 1 (1) first sentence, also in conjunction with subsection 2 first sentence;

2. fails to present an identity card in violation of Section 1 (1) second sentence, also in conjunction with subsection 2 first sentence;

3. fails to file the relevant application or fails to do so in time in violation of Section 9 (2) second sentence;

4. fails to provide correct information in violation of Section 9 (3) first sentence;

5. uses the electronic identification function in violation of Section 18 (2) fourth sentence;

6. saves a blocking attribute, blocking code or data in violation of Section 19 (1) no. 1 or no. 2 first clause, subsection 2, 3 or 4 first sentence;

7. uses an identity card for automated retrieval or automated storage of personal data in violation of Section 20 (2);

8. uses a serial number, blocking attribute or blocking code in violation of Section 20 (3) first sentence;

9. fails to report without delay in violation of Section 27 (1) no. 3, 4 or 5;

(2) Anyone shall be deemed to have committed an administrative offence who wilfully or negligently

1. fails to provide correct information referred to in Section 18 (4) second sentence, no. 1, 3 or 4 in violation of Section 21 (1) third sentence;

2. uses an authorization in violation of Section 21 (3) third sentence;

3. fails to report or does so incorrectly, incompletely or too late in violation of Section 21 (4); or

4. uses an authorization certificate in violation of Section 21 (6) first sentence.

(3) The administrative offence may be punished by a fine of up to three hundred thousand euros in the cases covered by subsection 1, nos. 6, 7 and 8; by a fine of up to thirty thousand euros in the cases covered by subsection 1, no. 5 and subsection 2, nos. 2, 3 and 5; and by a fine of up to five thousand euros in the remaining cases.

 

Section 33
Fining authorities

Administrative authorities within the meaning of Section 36 (1) no. 1 of the Act on Administrative Offences, as far as this Act is enforced by federal authorities, shall be

1. in the cases of Section 32 (1) nos. 2 and 5, the Federal Police authorities within their respective remits;

2. in the cases of Section 32 (1) nos. 6 through 8, the Federal Commissioner for Data Protection and Freedom of Information;

3. in the cases of Section 32 (1) nos. 4 and 9, the Federal Foreign Office for identity card matters abroad;

4. in the cases of Section 32 (2) nos. 1 through 4 the authority responsible for issuing authorization certificates pursuant to Section 7 (4) first sentence.

 

Part 8
Authority to issue statutory instruments; transitional provision

 

Section 34
Authorization to issue statutory instruments

The Federal Ministry of the Interior shall be authorized, by statutory instrument with the agreement of the Bundesrat and in consultation with the Federal Foreign Office,

1. to determine models of the identity card,

2. to specify details of the technical specifications for storing photographs and fingerprints and for protecting access to the data stored on the electronic storage and processing medium,

3. to specify details of procedures and technical specifications for capturing and ensuring the quality of photographs and fingerprints, as well as the sequence of fingerprints to be stored in case of a missing index finger, injured fingertip or poor-quality print, and concerning the form and details of the procedure for transmitting all identity card application data from the identity card authority to the card manufacturer,

4. to specify details of the procedure for checking pursuant to Section 12 (2) second sentence,

5. to specify details of the electronic identification function pursuant to Section 18,

6. to specify the details

a) of the PIN code,

b) of how card holders can block and unblock the electronic identification function, and

c) of storing and erasing the blocking attributes and blocking code;

7. to specify the details of issuing authorizations and authorization certificates, and

8. to determine in further detail the circumstances in which fees shall be payable for official acts pursuant to this Act and the level of such fees; with regard to the reimbursement of expenses, the statutory instrument may derogate from the Administrative Costs Act and from the Act on Fees and Expenses Charged Abroad and may permit discounts and waivers of fees and expenses.

 

Section 35
Transitional provision

In derogation from Section 7 (2), Section 8 (2), Section 10 (1) fourth sentence and subsection 2 second sentence, Section 23 (4) second sentence and Section 31 (2), until 31 December 2012 the identity card authority pursuant to Section 7 (1) shall be responsible for Germans whose main residence is outside Germany and who are staying temporarily in the district of that identity card authority.

Act on Cooperation between the Federal Government and the German Bundestag in Matters concerning the European Union

Full citation: Act on Cooperation between the Federal Government and the German Bundestag in Matters concerning the European Union of 4 July 2013 (Federal Law Gazette [BGBl.] Part I p. 2170)

The Bundestag has adopted the following Act:

 

Section 1
Participation of the Bundestag

(1) In matters concerning the European Union, the Bundestag shall participate in the decision-making processes of the Federation and shall have the right to state its position. The Federal Government shall notify the Bundestag of such matters comprehensively and as early as possible.

(2) Matters concerning the European Union within the meaning of Article 23 of the Basic Law are, in particular, amendments to the Treaties and corresponding amendments at the level of primary law as well as legislative acts of the European Union. International agreements and intergovernmental arrangements are also matters concerning the European Union if they supplement, or are otherwise closely related to, the law of the European Union.

 

Section 2
Committee on the Affairs of the European Union

The Bundestag shall appoint a Committee on the Affairs of the European Union. The Bundestag may authorise the Committee to deliver opinions on its behalf. It may authorise the Committee to exercise the rights granted to the Bundestag by Article 23 of the Basic Law in relation to the Federal Government. It may also authorise it to exercise the rights granted to the Bundestag by the contractual foundations of the European Union.

 

Section 3
Notification principles

(1) The Federal Government shall notify the Bundestag comprehensively, as early as possible and continuously of matters concerning the European Union. This notification shall, in principle, be made in writing through the forwarding of documents or the presentation of the Federal Government’s own reports and, in addition, orally. The oral notification shall perform a merely supplementary and explanatory function. The Federal Government shall ensure that this notification serves to enable the Bundestag to deliberate on its content.

(2) The notification shall cover, in particular, the Federal Government’s decision-making process, the preparation and course of discussions within the institutions of the European Union and the opinions of the European Parliament, of the European Commission and of the other Member States of the European Union as well as the decisions that have been taken. The same shall also apply to all preparatory bodies and working groups.

(3) The duty of notification shall also encompass the preparation and course of discussions at informal ministerial meetings, at euro summits and at meetings of the Eurogroup and of comparable institutions that are held on the basis of international agreements and other arrangements which complement or are otherwise particularly closely related to the law of the European Union. The same shall also apply to all preparatory bodies and working groups.

(4) The core area of the Federal Government’s own executive responsibility shall not be affected by the duty of notification.

(5) The Bundestag may waive its right to receive notification in specific cases, unless a parliamentary group or five per cent of the Members of the Bundestag lodge an objection.

 

Section 4
Transmission of documents and reporting obligations

(1) The notification of the Bundestag under section 3 of this Act shall be effected in particular through the transmission of all of the following items received by the Federal Government:

1. documents:

a. of the institutions of the European Union, the informal ministerial meetings, the Committee of Permanent Representatives and other Council committees and working groups,

b. of the euro summits, the Eurogroup and comparable institutions that meet on the basis of international agreements and other arrangements which complement or are otherwise particularly closely related to the law of the European Union,

c. of all bodies and working groups performing preparatory tasks for the institutions referred to in items a and b above,

2. reports from the Permanent Representation of the Federal Republic of Germany to the European Union or from the Federal Government concerning:

a. meetings of the institutions referred to in subparagraph 1 above,

b. sittings of the European Parliament and meetings of its committees,

c. the convening of trialogues and their proceedings and outcome, and

d. decisions of the European Commission.

The Bundestag must be informed in advance and in sufficiently good time to form an opinion on the subject of the meetings and on the position of the Federal Government and to be able to influence the negotiating line and voting decisions of the Federal Government. Reports of meetings must present at least the positions adopted by the Federal Government and other states, the course of negotiations, intermediate findings and final outcomes as well as any decisions for which parliamentary approval is required.

(2) In addition, the Federal Government shall transmit to the Bundestag:

1. documents and information on the Federal Government’s initiatives, opinions, contributions to consultations, draft programmes and explanations for institutions of the European Union, for informal ministerial meetings, for euro summits and for the Eurogroup and comparable institutions that meet on the basis of international agreements and other arrangements which complement or are otherwise particularly closely related to the law of the European Union,

2. relevant initiatives, opinions, contributions to consultations and explanations from governments of Member States of the European Union,

3. relevant initiatives, opinions, contributions to consultations and explanations from the Bundesrat and the Länder, and

4. coordinated instructions for the German representative on the Committee of Permanent Representatives.

The same shall also apply to all preparatory bodies and working groups.

(3) The Federal Government shall communicate information about unofficial documents it has received on matters concerning the European Union and shall make these available on request as early as possible.

(4) Before meetings of the European Council and of the Council, informal ministerial meetings, euro summits and meetings of the Eurogroup and comparable institutions that meet on the basis of international agreements and other arrangements which complement or are otherwise particularly closely related to the law of the European Union, the Federal Government shall notify the Bundestag of each subject of discussion in writing and orally. This notification shall encompass the main features of the subject matter and of the state of negotiations as well as the negotiating line of the Federal Government and its initiatives. After these meetings, the Federal Government shall provide written and oral information on their outcome.

(5) The Federal Government shall regularly transmit to the Bundestag, on at least a quarter-yearly basis, early-warning reports on current political developments in matters concerning the European Union.

(6) The Federal Government shall also notify the Bundestag

1. of the institution of infringement proceedings under Articles 258 and 260 of the Treaty on the Functioning of the European Union by transmitting letters of formal notice and reasoned opinions as well as explanatory information and documents, particularly the response of the Federal Government, in so far as the proceedings concern the failure of the Federation to transpose directives or its incomplete or incorrect transposition of directives,

2. of proceedings before the Court of Justice of the European Union to which the Federal Republic of Germany is a party and shall transmit the pertinent documents relating to such proceedings, and

3. of other proceedings before the Court of Justice of the European Union and shall transmit the pertinent documents in so far as it has received them.

 

Section 5
Projects of the European Union

(1) Projects of the European Union (‘projects’) within the meaning of this Act are, in particular,

1. proposals and initiatives for decisions to open negotiations on amendments to the contractual foundations of the European Union,

2. proposals and initiatives for decisions to open negotiations with a view to preparing accessions to the European Union,

3. proposals and initiatives for decisions within the meaning of Article 140(2) of the Treaty on the Functioning of the European Union on the introduction of the euro. proposals for legislative acts of the European Union,

4. proposals for legislative acts of the European Union,

5. negotiating mandates for the European Commission to engage in negotiations on international agreements of the European Union,

6. items for discussion, initiatives, negotiating mandates and negotiation guidelines for the European Commission in the framework of the common commercial policy and the world trade rounds,

7. communications, opinions, green and white papers and recommendations from the European Commission,

8. reports, action plans and policy programmes of the institutions of the European Union,

9. interinstitutional arrangements concluded by the institutions of the European Union,

10. budgetary and financial plans of the European Union,

11. draft international agreements and other arrangements if they supplement, or are otherwise closely related to, the law of the European Union,

12. items for discussion, proposals and initiatives being addressed in the framework of international agreements and arrangements within the meaning of subparagraph 11 above.

(2) Proposals and initiatives of the European Union for which the participation of the Bundestag is required under the Responsibility for Integration Act (Integrationsverantwortungsgesetz) of 22 September 2009 (Federal Law Gazette I, p. 3022), as amended, are also projects within the meaning of the present Act.

(3) The following provisions shall apply to the matters specified below:

1. notwithstanding the provisions of sections 1 to 4 of the present Act, the provisions of the ESM Financing Act (ESM-Finanzierungsgesetz) of 13 September 2012 (Federal Law Gazette I, p. 1918), as amended, shall apply to the European Stability Mechanism;

2. notwithstanding the provisions of sections 1 to 4 of the present Act, the provisions of the Stabilisation Mechanism Act (Stabilisierungsmechanismusgesetz) of 22 May 2010 (Federal Law Gazette I, p. 627), as amended, shall apply to the European Financial Stability Facility;

3. section 7 of the present Act shall apply to the Common Foreign and Security Policy and the Common Security and Defence Policy.

 

Section 6
Formal forwarding, report form and comprehensive appraisal, conclusion of EU legislative procedures

(1) The Federal Government shall transmit all projects to the Bundestag with a forwarding letter (formal forwarding). The forwarding letter shall be based on the document to be forwarded and contain the following information:

1. the main substance and aim of the project,

2. the date on which the German-language version of the relevant document appeared,

3. the legal basis,

4. the applicable procedure, and

5. the designation of the lead federal ministry.

(2) Within two weeks following the formal forwarding of a project, the Federal Government shall transmit a report in accordance with the annex to this Act (report form). In particular, this form shall contain an appraisal of the project in terms of its compatibility with the principles of subsidiarity and proportionality.

(3) In addition, the Federal Government shall transmit a comprehensive appraisal of proposals for legislative acts of the European Union within two weeks following their referral to the Bundestag committees but no later than the start of their discussion by the Council bodies. Besides indications regarding the competence of the European Union to adopt the proposed legislative act and its compatibility with the principles of subsidiarity and proportionality, this appraisal shall, in the framework of a comprehensive assessment of the impact on the Federal Republic of Germany, contain statements, particularly in the light of legal, economic, financial, social and environmental considerations, on the substance of the regulatory provisions, alternatives, costs, administrative burden and the need for transposition. In the case of other projects within the meaning of section 5(1) of this Act, a comprehensive appraisal of the project shall be made solely on request.

(4) In the case of urgent proposals, the time limits defined in paragraphs 2 and 3 above shall be shortened so as to ensure timely notification of the Bundestag and the opportunity for the latter to deliver an opinion in accordance with the first sentence of section 8(1) of this Act. If a particularly extensive appraisal is required, the time limit may be lengthened.

(5) In addition, the Federal Government shall draw up detailed reports on request on particularly complex or significant projects.

(6) The Federal Government shall notify the Bundestag of the conclusion of a legislative procedure of the European Union; this notification shall also contain an appraisal as to whether the Federal Government considers the legislative act to be consistent with the principles of subsidiarity and proportionality; in the case of directives, the Federal Government shall inform the Bundestag of time limits to be observed for transposition into national law and of the transposition requirement.

 

Section 7
Common Foreign and Security Policy and Common Security and Defence Policy

(1) In the realm of the Common Foreign and Security Policy and the Common Security and Defence Policy, the Federal Government shall provide comprehensive, continuous notification as early as possible. The notification shall, as a rule, be made in writing. It shall comprise the forwarding of a summary of the legislative acts that are due to be the subject of discussion, an appraisal of them and a prognosis of the future course of discussions. Section 4(4) shall apply, mutatis mutandis, to meetings of the European Council and the Council featuring decisions and conclusions in the realm of the Common Foreign and Security Policy and the Common Security and Defence Policy.

(2) In addition, the Federal Government shall forward to the Bundestag, on request, documents of fundamental importance in accordance with the provisions of section 6(1) of this Act. Section 6(2) of this Act shall apply, mutatis mutandis.

(3) The Federal Government shall also provide continuous and early oral notification of all relevant developments in the realm of the Common Foreign and Security Policy and the Common Security and Defence Policy.

(4) The Federal Government shall notify the competent committees of the Bundestag orally about the meetings of the Political and Security Committee.

 

Section 8
Opinions of the Bundestag

(1) Before participating in projects, the Federal Government shall give the Bundestag the opportunity to deliver an opinion. To this end, the Federal Government shall continuously transmit to the Bundestag updated information on the course of discussions which will enable the Bundestag to determine, on the basis of the course of the discussions, the time by which it seems appropriate to deliver an opinion.

(2) If the Bundestag delivers an opinion, the Federal Government shall use it as a basis for its negotiations. The Federal Government shall notify the Bundestag continuously about the consideration given to its opinion in negotiations.

(3) The Bundestag may adapt and supplement its opinion while a project is being discussed. The first sentence of paragraph 2 above shall apply, mutatis mutandis.

(4) If the Bundestag avails itself of the opportunity to deliver an opinion under the first sentence of Article 23(3) of the Basic Law (Grundgesetz), the Federal Government shall invoke the requirement of prior parliamentary approval in the negotiations if the main interests expressed in the decision of the Bundestag cannot be asserted. The Federal Government shall notify the Bundestag thereof without delay in a special report. In its form and content, this report must lend itself to discussion by the bodies of the Bundestag. Before the final decision, the Federal Government shall endeavour to reach agreement with the Bundestag. This shall also apply if the Bundestag delivers an opinion on matters concerning municipal services of public interest in connection with projects of the European Union. The foregoing provisions shall not prejudice the right of the Federal Government, in awareness of the Bundestag’s opinion, to take divergent decisions for good reasons of foreign or integration policy.

(5) After the final decision, the Federal Government shall notify the Bundestag in writing without delay, particularly as regards the adoption of the parliamentary opinion. If not all of the interests expressed in the opinion have been taken into account, the Federal Government shall also state the reasons for this. At the request of one quarter of the Members of the Bundestag, the Federal Government shall also explain these reasons in the framework of a plenary debate.

 

Section 9
Opening of negotiations on accessions and treaty amendments

(1) When notifying the Bundestag of proposals and initiatives for decisions on the opening of negotiations

1. to prepare an accession to the European Union, or

2. to make amendments to the contractual foundations of the European Union,

the Federal Government shall refer to the Bundestag’s right to deliver an opinion under section 8 of this Act.

(2) Before the final decision in the Council or in the European Council, the Federal Government is to reach agreement with the Bundestag. This shall not prejudice the right of the Federal Government, in awareness of the Bundestag’s opinion, to take divergent decisions for good reasons of foreign or integration policy.

 

Section 9a
Introduction of the euro in a Member State

(1) When notifying the Bundestag of proposals and initiatives for Council decisions under Article 140(2) of the Treaty on the Functioning of the European Union on the introduction of the euro in an additional Member State, the Federal Government shall refer to the Bundestag’s right to deliver an opinion under section 8 of this Act.

(2) Before the final decision in the Council, the Federal Government is to reach agreement with the Bundestag. This shall not prejudice the right of the Federal Government, in awareness of the Bundestag’s opinion, to take divergent decisions for good reasons of foreign or integration policy.

 

Section 10
Access to databases, confidential treatment of documents

(1) Within the scope of the provisions on data protection, the Federal Government shall grant the Bundestag access to the documentary databases of the European Union that are accessible to the Federal Government.

(2) The documents of the European Union shall, in principle, be transmitted openly. Security classifications applied by the institutions of the European Union to ensure special confidentiality shall be respected by the Bundestag. Any national classification as confidential which may be necessary for these documents or for other information, reports and communications to be transmitted to the Bundestag within the scope of this Act shall be applied prior to dispatch by the Federal Government and shall be respected by the Bundestag. The reasons for the classification shall be explained on request.

(3) The Bundestag shall take account of the particular need to protect current confidential negotiations by according them confidential treatment.

 

Section 11
Bundestag Liaison Office

(1) The Bundestag may maintain direct contacts with bodies of the European Union through a liaison office in so far as this enables it to exercise its participatory rights in matters concerning the European Union. The parliamentary groups in the Bundestag shall second representatives to the liaison office.

(2) The Federal Government shall assist the Bundestag Liaison Office in its professional tasks through the Permanent Representation of the Federal Republic of Germany to the European Union and the Embassy of the Federal Republic of Germany to the Kingdom of Belgium.

 

Section 12
Entry into force, termination

This Act shall enter into force on the day following the date of promulgation. At the same time, the Act of 12 March 1993 on Cooperation between the Federal Government and the German Bundestag in Matters concerning the European Union (Federal Law Gazette I, p. 311), as amended by Article 2 of the Act of 13 September 2012 (Federal Law Gazette 2012 II, p. 1006), shall terminate.

Act implementing the Convention of 14 May 1954 for the Protection of Cultural Property in the Event of Armed Conflict

Full citation: Act implementing the Convention of 14 May 1954 for the Protection of Cultural Property in the Event of Armed Conflict of 18 May 2007 (Federal Law Gazette [BGBl.] Part I p. 757)

Article 4 of the Act implementing the UNESCO Convention of 14 November 1970 on the means of prohibiting and preventing the illicit import, export and transfer of ownership of cultural property (Act Implementing the Cultural Property Convention)

 

Section 1
Obligation to return

(1) Cultural property within the meaning of Article 1 of the Convention for the Protection of Cultural Property in the Event of Armed Conflict of 14 May 1954 (Federal Law Gazette 1967, Part II, p. 1233) from an occupied territory of a State Party shall be returned to the respective competent authorities of the previously occupied territory at the end of the hostilities if

1. it was removed from the territory of that State during an armed conflict and brought into the territory of the Federal Republic of Germany after 11 November 1967 and

2. a request for return is made to the Federal Foreign Office by the authorities of the State Party through diplomatic offices.

(2) Deposited cultural property within the meaning of Chapter II, number 5, of the Protocol to the Convention of 14 May 1954 (Federal Law Gazette 1967, Part II, pp. 1233, 1300) shall be returned at the end of the hostilities without the further conditions of subsection (1) having to be met.

(3) The costs of return shall be born by the requesting State.

(4) The person physically holding the cultural property on his own account or for a third party (the party obliged to return) shall be obliged to return it only upon payment of fair compensation. There shall be no obligation to pay compensation if the requesting State furnishes proof that at the time such party acquired the cultural property he was aware, or was unaware due to gross negligence, that the object had been removed from an occupied territory or deposited for purposes of protection.

(5) If the returnable cultural property was donated, bequeathed or left to the party obliged to return it, he shall bear the burden of the donor’s or testator’s breach of the duty to exercise due care.

 

Section 2
Prohibition of removal and seizure

(1) Any removal of cultural property in contravention of Chapter I, number 2, of the Protocol from an occupied territory of a State Party to the territory of the Federal Republic of Germany during an armed conflict shall be prohibited. This shall not apply to cultural property which, within the meaning of Chapter II, number 5, of the Protocol, is to be deposited in the territory of the Federal Republic of Germany for the purpose of protecting such property against the dangers of an armed conflict.

(2) The removal of cultural property pursuant to subsection (1) to the territory of the Federal Republic of Germany in direct trade with third countries shall be subject to supervision by the customs authorities.

(3) The Federal Ministry of Finance shall be authorised, in agreement with the Federal Government Commissioner for Culture and the Media, to regulate the details of the procedure indicated in subsection (2) by way of ordinances not requiring the consent of the Bundesrat; it can thereby also provide for obligations to notify, declare, furnish information and provide ancillary assistance as well as obligations to tolerate inspection of business papers and other documents and to tolerate examinations and the taking of samples and specimens without payment.

(4) If, within the framework of supervision by the customs authorities, doubts arise as to whether the object in question is cultural property from an occupied territory of a State Party, the competent customs office may, until such doubts are clarified, impound the object or have it impounded by a third party at the expense of the person by whom or in whose name the object is being brought into the territory of the Federal Republic of Germany (person with the right of disposal over the object). To clarify such doubts, the customs office may demand that the person with the right of disposal produce a certificate, issued by an independent expert institution or expert who has been recognized as such by the Federal Government Commissioner for Culture and the Media and in respect of whom corresponding notice has been published pursuant to section 17 subsection (4) of the Act on the Return of Cultural Property of 18 May 2007 (Federal Law Gazette, Part I, p. 757), confirming that the object in question is not cultural property from an occupied territory of a State Party.

(5) Cultural property which is directly removed from a third country to the territory of the Federal Republic of Germany in contravention of the prohibition set out in subsection (1) shall be subject to seizure by the competent customs offices. Such seizure shall be reported to the Federal Foreign Office or to the Federal Government Commissioner for Culture and the Media without delay.

(6) The Federal Foreign Office shall inform the authorities of the State Party of the seizure without delay.

(7) Seized objects shall, at the end of the hostilities, be returned to the person with the right of disposal over them if the State Party, when asked, declares that it will not seek return. The objects shall also be returned to the person with the right of disposal if the State Party does not respond within one year. The costs of storage after seizure shall be borne by the person with the right of disposal. The query and the decision on return shall be made by the Federal Foreign Office in agreement with the Federal Government Commissioner for Culture and the Media, which shall inform the competent customs office of the decision.

(8) Notice of the occupied territories of the States Parties shall be published by the Federal Foreign Office in the Federal Gazette.

 

Section 3
Procedure for effecting and securing return

(1) The Länder shall be responsible for the measures necessary to locate, secure and return returnable cultural property. The tasks associated with repatriation shall be carried out pursuant to section 12 of the Act on the Return of Cultural Property, mutatis mutandis, by the central authorities specified therein.

(2) The objects to be returned pursuant to section 1 which have not already been seized pursuant to section 2 subsection (5) shall be secured in accordance with Land legislation if there is reason to fear that their return to the requesting State may be hindered or that they may sustain damage. The costs of securing the objects shall be borne by the requesting State.

(3) Such securing shall be reported to the Federal Foreign Office or the Federal Government Commissioner for Culture and the Media without delay.

(4) The Länder shall also be responsible for the measures necessary to accept, store and return cultural property deposited pursuant to Chapter II, number 5, of the Protocol. The tasks associated there with shall be carried out pursuant to sections 8 and 12 of the Act on the Return of Cultural Property, mutatis mutandis.

Act for the Simplification of Supervision under Laws Pertaining to Waste Management

This act supports transposition of the following directives:
–  Council Directive 75/442/EEC of 15 July 1975 on waste (OJ EC L 149 p. 39), last amended by Council Directive
91/692/EC of 23 December 1991 (OJ EC L 377 p. 48),
–  Council Directive 91/689/EEC of 12 December 1991 on hazardous waste (OJ EC L 377 p. 20), amended by
Council Directive 94/31/EC of 27 June 1994 (OJ EC L 168 p. 28),
–  Council Directive 85/337/EEC of 27 June 1985 on the assessment of the effects of certain public and private projects on the environment (OJ EC L 175 p. 40), amended by Council Directive 97/11/EC of 3 March 1997 (OJ EC L 73 p. 5) and by Council Directive 2003/35/EC of 26 May 2003 (OJ EU L 156 p. 17),
–  Council Directive 96/61/EC of 24 September 1996 concerning integrated pollution prevention and control (OJ EC L 257 p. 26), amended by Directive 2003/35/EC of the European Parliament and of the Council of 26 May
2003 (OJ EU L 156 p. 17) and by Directive 2003/87/EC of the European Parliament and of the Council of 13
October 2003 (OJ EU L 275 p. 32) and by Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003 (OJ EU L 284 p. 1),
–  Council Directive 1999/31/EC of 26 April 1999 on the landfill of waste (OJ EC L 182 p. 1), amended by
Regulation (EC) No 1882/2003 of the European Parliament and of the Council of 29 September 2003 (OJ EU L
284 p. 1),
–  Directive 2002/96/EC of the European Parliament and of the Council of 27 January 2003 on waste electrical and electronic equipment (WEEE) (OJ EU L 37 p. 24), amended by Directive 2003/108/EC of the European Parliament and of the Council of 8 December 2003 (OJ EU L 345 p. 106),
–  Directive 2002/95/EC of the European Parliament and of the Council of 27 January 2003 on the restriction of the use of certain hazardous substances in electrical and electronic equipment (OJ EU L 37 p. 19), last amended by Commission Decision of 21 April 2006 (OJ L 115 p. 38).

 

Footnotes

 

(+++ Amending provison – no text citation +++) (+++ Legislators’ official reference to EC law:
Transposition of ECD 61/96             (CELEX Nr: 396L0061) ECD 31/99                       (CELEX Nr: 399L0031)
ECD 96/2002           (CELEX Nr: 302L0096)
ECD 95/2002          (CELEX Nr: 302L0095) Transposition of EECD 442/75                               (CELEX Nr: 375L0442)
EECD 689/91           (CELEX Nr: 391L0689) EECD 337/85                       (CELEX Nr: 385L0337)

[KrW-/AbfG = Act for Promoting Closed Substance Cycle Waste Management and Ensuring Environmentally
Compatible Waste Disposal (Kreislaufwirtschafts- und Abfallgesetz – KrW-/AbfG)

AbfKoBiV = Ordinance on Waste Management Concepts and Waste Balance Sheets (Verordnung über
Abfallwirtschaftskonzepte und Abfallbilanzen)

UVPG = Environmental Impact Assessment Act (Umweltverträglichkeitsprüfungsgesetz)

BestüVAbfV = Ordinance on the Codification of Waste for Recovery Requiring Supervision (Bestimmungsverordnung


überwachungsbedürftige Abfälle)

UStatG = Environmental Statistics Act (Umweltstatistikgesetz)

BimSchV = Ordinance for the Execution of the Federal Immission Control Act (Bundesimmissionsschutzverordnung) AVV = Ordinance on the European Waste Catalogue (Abfallverzeichnis-Verordnung)
TransgV = Ordinance on Transport Licences (Transportgenehmigungsverordnung) AltholzV = Ordinance on Waste Wood (Altholzverordnung)
GewAbfV = Commercial Wastes Ordinance (Gewerbeabfallverordnung) VersatzV = Underground Waste Stowage Ordinance (Versatzverordnung) DepV = Landfill Ordinance (Deponieverordnung)
VwGO = Administrative Court Procedures Code (Verwaltungsgerichtsordnung)

ElektroG = Electrical and Electronic Equipment Act (Elektro- und Elektronikgerätegesetz)

 

 

This act amends the following provisions:

Provision

Amendment

Amended legislation

Valid as of

Art. 1 No 1

New provision

KrW-/AbfG Art. 3 (8)

2007-02-01

Art. 1 No 2 letter a

Rescission

KrW-/AbfG Art. 7 (1) No 5 and 6

2006-07-21

 

Art. 1 No 2 letter b

New provision/general

 

KrW-/AbfG Art. 7 (3)

 

2006-07-21

Art. 1 No 2 letter b

Insertion/general

KrW-/AbfG Art. 7 (4) and 5

2006-07-21

Art. 1 No 3

Partial amendment

KrW-/AbfG Art. 8 (2) S 1 No 2

2006-07-21

Art. 1 No 3

Insertion

KrW-/AbfG Art. 8 (2) S 1 No 3

2006-07-21

Art. 1 No 4

New provision

KrW-/AbfG Art. 12 (1) No 3

2006-07-21

Art. 1 No 5

Insertion

KrW-/AbfG Art. 13 (3) S 1 No 1a

2007-02-01

Art. 1 No 7 letter a

Rescission

KrW-/AbfG Art. 19 (1), 2 and 4

2007-02-01

Art. 1 No 7 letter b

Rescission

KrW-/AbfG Art. 19 (Para name "(5)")

2007-02-01

 

Art. 1 No 10

New provision/general

 

KrW-/AbfG Art. 25 (2)

 

2007-02-01

Art. 1 No 10

Insertion/general

KrW-/AbfG Art. 25 (3) to 6

2007-02-01

Art. 1 No 11

Partial amendment

KrW-/AbfG Art. 28 (1) S 4

2007-02-01

Art. 1 No 12 letter a

Insertion

KrW-/AbfG Art. 29 (8)

2007-02-01

Art. 1 No 12 letter b

Renumbering

KrW-/AbfG Art. 29 (8) and 9 in KrW-/AbfG Art. 29 (9 and 10

2007-02-01

Art. 1 No 13

New provision

KrW-/AbfG Art. 40 (2) S 1

2007-02-01

 

Art. 1 No 14

 

New provision/general

KrW-/AbfG Art. 41
KrW-/AbfG Art. 42
KrW-/AbfG Art. 43
KrW-/AbfG Art. 44

 

2007-02-01

 

Art. 1 No 14

New provision/general

 

KrW-/AbfG Art. 45

 

2006-07-21

 

Art. 1 No 14

 

Rescission/general

KrW-/AbfG Art. 46
KrW-/AbfG Art. 47
KrW-/AbfG Art. 48

 

2007-02-01


Art. 1 No 15 letter a

Renumbering

KrW-/AbfG Art. 55a in KrW-/AbfG Art. 55a (1)

2007-02-01

Art. 1 No 15 letter b

Insertion

KrW-/AbfG Art. 55a (2)

2007-02-01

Art. 1 No 16 letter a

Partial amendment

KrW-/AbfG Art. 61 (1) No 5

2007-02-01

Art. 1 No 16 letter b aa

 

New provision

 

KrW-/AbfG Art. 61 (2) No 1

 

2007-02-01

Art. 1 No 16 letter b bb

 

Partial amendment

 

KrW-/AbfG Art. 61 (2) No 3

 

2007-02-01

Art. 1 No 16 letter b cc

 

Partial amendment

 

KrW-/AbfG Art. 61 (2) No 6

 

2007-02-01

Art. 1 No 16 letter b dd

 

Amendment/general

KrW-/AbfG Art. 61 (2) No 7 in KrW-/AbfG Art. 61 (2) No 7 to
11

 

2007-02-01

Art. 1 No 16 letter b ee

 

Renumbering

KrW-/AbfG Art. 61 (2) No 8 to 10 in KrW-/AbfG Art. 61 (2) No 12 to 14

 

2007-02-01

Art. 1 No 16 letter b ff

 

Partial amendment

 

KrW-/AbfG Art. 61 (2) No 14

 

2007-02-01

Art. 1 No 16 letter c

Partial amendment

KrW-/AbfG Art. 61 (4)

2007-02-01

 

 

Art. 1 No 17

 

 

Partial amendment

KrW-/AbfG Art. 13 (3) S 2
KrW-/AbfG Art. 13 (4) S 1, 2 and 4
KrW-/AbfG Art. 36 (4) KrW-/AbfG Art. 50 (2)
KrW-/AbfG Art. 54 (1) S 1
KrW-/AbfG Art. 55 (1) S 2 No 4

 

 

2007-02-01

Art. 1 No 18

Partial amendment

KrW-/AbfG Art. 31 (3) S 2 and 3

2007-02-01

Art. 1 No 19

Partial amendment

KrW-/AbfG Art. 50 (2) No 2

2007-02-01

Art. 2

Rescission

AbfKoBiV

2007-02-01

 

Art. 4 No 1

 

Partial amendment

UVPG Annex 1 No 8.3, 8.4, 8.5, 8.6, 8.8
UVPG Annex 1 No 8.9.1, 8.9.2, 12.1, 12.2

 

2007-02-01

Art. 4 No 2

Partial amendment

UVPG Annex 3 No 2.3

2007-02-01

Art. 3

Rescission

BestüVAbfV

2007-02-01

Art. 5 No 1

Partial amendment

UStatG Art. 4 (1) No 1

2007-02-01

Art. 5 No 2

Partial amendment

UStatG Art. 14 (2) No 2 letter a

2007-02-01

Art. 6 No 1

Partial amendment

BImSchV 4 1985 Annex (Num. 8.3)

2007-02-01

 

Art. 6 No 2

 

Partial amendment

BImSchV 4 1985 Annex (Num. 8.6, 8.8, 8.10, 8.11) BImSchV 4 1985 Annex (Num. 8.12, 8.13, 8.14, 8.15)

 

2007-02-01

Art. 7 No 1

Partial amendment

AVV Art. 1 No 2

2007-02-01

Art. 7 No 2 letter a

Partial amendment

AVV Art. 3 (Heading)

2007-02-01

Art. 7 No 2 letter b

New provision

AVV Art. 3 (1) S 1

2007-02-01

 

Art. 7 No 2 letter c

 

Partial amendment

AVV Art. 3 (2) S 1
AVV Art. 3 (3) S 2

 

2007-02-01

 

Art. 8 No 1

 

Partial amendment

TransgV Art. 1 (1) S 1
TransgV Art. 1 (2) S 1
TransgV Art. 3 (1) S 1

 

2007-02-01

Art. 8 No 2

Partial amendment

TransgV Art. 12 No 1

2007-02-01

Art. 9

Partial amendment

AltholzV Art. 6 (5) S 1 and 3

2007-02-01

 

Art. 10

 

Partial amendment

GewAbfV Art. 3 (8) GewAbfV Art. 5 (2)

 

2007-02-01

Art. 11

Partial amendment

VersatzV Annex 4 (Num. 2.4 last Para)

2007-02-01

 

Art. 12

 

Partial amendment

DepV Art. 6 (2) and 3 S 1 and 3
DepV Art. 8 (6)
DepV Art. 14 (4) and 5
DepV Art. 25 (2)

 

2007-02-01


 

 

DepV Annex 4 (Num. 4 S 2)

 

Art. 13

Partial amendment

VwGO Art. 48 (1) No 5

2007-02-01

Art. 14 No 1

Partial amendment

ElektroG Art. 2 (3) S 2

2007-02-01

Art. 14 No 2

Insertion

ElektroG Art. 2 (3) S 4

2007-02-01

Act Establishing the Federal Financial Supervisory Authority

Part I
Establishment, supervision, functions

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Section 1
Establishment

(1) A federal institution with legal personality governed by public law is established as part of the portfolio of the Federal Ministry of Finance as of 1 May 2002 by merging the Federal Banking Supervisory Office (Bundesaufsichtsamt für das Kreditwesen), the Federal Insurance Supervisory Office (Bundesaufsichtsamt für das Versicherungswesen), and the Federal Securities Supervisory Office (Bundesaufsichtsamt für den Wertpapierhandel). This new authority bears the name “Federal Financial Supervisory Authority” (Supervisory Authority).

(2) The Supervisory Authority’s offices are located in Bonn and in Frankfurt am Main.

(3) For actions against the Supervisory Authority, its office is deemed to be in Frankfurt am Main. In proceedings under the Act on Breaches of Administrative Regulations (Gesetz über Ordnungswidrigkeiten), the Supervisory Authority’s office is deemed to be in Frankfurt am Main. Sentence 1 shall not be applicable to legal actions arising from contracts of employment with public officials or to legal disputes that fall within the purview of the labour courts.

(4) The Supervisory Authority is exempt from the payment of court fees in proceedings before courts of law.

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Section 2
Legal and technical supervision

The Supervisory Authority is subject to legal and technical supervision by the Federal Ministry of Finance (Federal Ministry).

Back to top
Section 3
Forum for financial market supervision

A Forum for Financial Market Supervision is established at the Supervisory Authority, to which the Supervisory Authority and the Deutsche Bundesbank belong. The Federal Ministry may participate in its meetings. The Forum is chaired by the Supervisory Authority. The Forum for Financial Market Supervision coordinates cooperation with the Deutsche Bundesbank in supervisory matters. It also advises in matters of integrated financial services supervision that are of importance to the stability of the financial system.

Back to top
Section 4
Functions and cooperation

(1) The Supervisory Authority takes over the functions previously allocated to the Federal Banking Supervisory Office, the Federal Insurance Supervisory Office and the Federal Securities Supervisory Office. It shall also fulfil those functions transferred to it by other provisions, including advisory activities in connection with the development and support of supervisory systems outside Germany.

(2) The Supervisory Authority cooperates with other bodies and persons in Germany and abroad pursuant to the laws and provisions cited in subsection (1) and pursuant to

Regulation (EU) No 1092/2010 of the European Parliament and of the Council of 24 November 2010 on European Union macro-prudential oversight of the financial system and establishing a European Systemic Risk Board (OJ L 311 of 15 December 2010, p. 1),
Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC (OJ L 311 of 15 December 2010, p. 12),
Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/79/EC (OJ L 311 of 15 December 2010, p. 48) and
Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC (OJ L 311 of 15 December 2010, p. 84).

(3) The Supervisory Authority may avail itself of other persons and institutions in the performance of its functions.

(4) The Supervisory Authority performs its functions and exercises its powers exclusively in the public interest.

Back to top

Part II
Organisation

Back to top
Section 5
Organs, articles of association

(1) The organs of the Supervisory Authority are the Executive Board, the President and the Administrative Council.

(2) The functions and powers of the organs are determined by the articles of association of the Supervisory Authority to the extent that they are not governed by the provisions of this Act.

(3) The Federal Ministry shall be authorised to issue the articles of association of the Supervisory Authority by way of a Regulation. The articles of association may be amended by the Federal Ministry by way of a Regulation in consultation with the Administrative Council. The articles of association shall include, in particular, provisions concerning

the Supervisory Authority’s structure and organisation;
the rights and duties of the Supervisory Authority’s organs;
the details relating to the appointment and dismissal of the members of the Administrative Council and the right of nomination held by the associations of the banking and insurance industries;
the details relating to the appointment and dismissal of the members of the Advisory Board;

the Supervisory Authority’s budgetary administration and rendering of accounts.

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Section 6
Management

(1) Overall responsibility for managing the Supervisory Authority lies with the Executive Board. The Executive Board consists of one President and four Chief Executive Directors, one of whom is the President’s permanent deputy. The Executive Board unanimously adopts an organisational statute determining the functions and responsibilities within the Executive Board. The organisational statute and amendments to it are to be presented to the Federal Ministry for approval.

(2) The Executive Board meets under the chairmanship of the President. It takes decisions by a simple majority of the votes cast, also in the event of any difference of opinion. In case of a tie, the President shall have the casting vote. The Executive Board defines the internal organisation of the Supervisory Authority by way of rules of procedure. Decisions on the rules of procedure and on amendments to them requiring the approval of the Federal Ministry require an unanimous vote of the Executive Board.

(3) The President decides on the strategic orientation of the Supervisory Authority as an integrated financial services supervisor at a national and international level. In accordance with this strategic framework, the Chief Executive Directors bear the responsibility for their directorates.

(4) Four directorates are established to perform the Supervisory Authority’s statutory functions: Regulatory Services/Human Resources, Banking Supervision, Insurance Supervision and Securities Supervision.

(5) The President represents the Supervisory Authority before the courts and out of court.

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Section 7
Administrative Council

(1) An Administrative Council is established at the Supervisory Authority. The Administrative Council monitors the management of the Supervisory Authority and supports it in the performance of its functions. The President must keep the Administrative Council regularly informed of the Supervisory Authority’s management activities. The Chief Executive Directors must report on their directorates’ activities.

(2) The Administrative Council establishes its own rules of procedure.

(3) The Administrative Council consists of

the Chairman and his/her Deputy, who are seconded by the Federal Ministry,

the following 19 members:
two further representatives of the Federal Ministry;
one representative of the Federal Ministry of Economics and Technology;
one representative of the Federal Ministry of Justice;
five members of the Bundestag;
five representatives of the credit institutions;
four representatives of the insurance undertakings;
one representative of the asset management companies (Kapitalanlagegesellschaften).

The Deutsche Bundesbank may be represented at the meetings of the Administrative Council by one representative without a voting right. The Chairman of the Supervisory Authority’s Staff Council and his/her deputies have the same right to participate in the meetings.

(4) The resolutions of the Administrative Council are passed by simple majority. In case of a tie, the Chairman shall have the casting vote.

(5) The members of the Administrative Council are appointed by the Federal Ministry. A deputy shall be nominated, and appointed by the Federal Ministry, for each member of the Administrative Council for the event of a member being unable to attend meetings. The members of the Administrative Council must fulfil the requirements on eligibility to stand for election to the Bundestag.

(6) The members of the Bundestag are nominated by the Bundestag and are appointed for the duration of the legislative period of the Bundestag. At the end of the legislative period they remain in office until such time as the new members have been nominated.

(7) Members may be reappointed. They may waive membership by submitting a written declaration to the Federal Government and thus resign their office. Members are removed from office if they no longer fulfil the appointment requirements or if another compelling reason exists in the person of the member, but in this case only after the seconding institution has been heard.

(8) If a member leaves office, a new member shall be appointed without undue delay to replace him. An appointed deputy performs the duties of a departing member until a new member is appointed or in the event of a member being temporarily unable to fulfil his/her duties. Subsections (1) to (8) shall apply mutatis mutandis to deputy members.

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Section 8
Advisory Board

(1) An Advisory Board is established at the Supervisory Authority. The Board advises the Supervisory Authority in the performance of its functions. It may also make recommendations on the further development of supervisory practice in general.

(2) The Advisory Board comprises 24 members. The members of the Advisory Board are appointed by the Federal Ministry. Academia, the banking and insurance industries, the Deutsche Bundesbank and the consumer protection associations shall be adequately represented on the Advisory Board.

(3) The Advisory Board elects a Chairman from among its members. The Advisory Board establishes its own rules of procedure.

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Part III
Personnel

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Section 9
Legal status of the members of the Executive Board

(1) The relationship between the members of the Executive Board and the Federal Administration shall be that of an official public-law relationship (öffentlich-rechtliches Amtsverhältnis). The members of the Executive Board shall have special professional qualifications and shall be appointed by the Federal President based on a proposal brought forward by the Federal Government. The term of office of the members of the Executive Board shall be eight years; by way of exception, they may be appointed for a shorter term of office, but for at least five years. Reappointment shall be permissible.

(2) The official relationship of the members of the Executive Board shall commence upon handing over the certificate of appointment, unless a later date is specified in the certificate. The official relationship shall end upon expiry of the term of office or upon the member being discharged. The Federal President shall discharge a member of the Executive Board upon his/her request or upon resolution of the Federal Government for good cause. Before the Federal Government adopts the resolution, the member of the Executive Board shall be given an opportunity to state his/her position. In the event of termination of the official relationship, the member of the Executive Board shall receive a certificate executed by the Federal President. The discharge shall become effective upon handing over the certificate, unless a later date is explicitly specified in the certificate. The discharge for good cause shall become effective upon implementation of the Federal Government’s resolution, unless the Federal Government explicitly resolves that the discharge take effect at a later date.

(3) The members of the Executive Board shall take the following oath before the Federal Minister of Finance: “I swear that I will uphold the Basic Law for the Federal Republic of Germany and any and all laws applicable in the Federal Republic of Germany and that I will perform my duties of office conscientiously, so help me God.” The oath may also be taken without religious affirmation.

(4) The members of the Executive Board may not, without the consent of the Federal Ministry, hold any other salaried office than their own, or engage in any trade or profession, or be a member of the management or supervisory board, board of directors, advisory board or other governing body of any public or private enterprise, or be a member of the government or of a legislative body of the Federal Government or of a Federal State. They may not provide out-of-court expert opinions in exchange for a consideration without the consent of the Federal Ministry. The Federal Ministry shall withhold its consent subject to the provisions set forth in section 99 (2) of the Federal Civil Servants Act (Bundesbeamtengesetz).

(5) Sections 67 to 69 and 71 of the Federal Civil Servants Act shall apply mutatis mutandis. The Federal Ministry shall be the supreme official authority.

(6) In all other respects, the legal relationship of the members of the Executive Board shall be governed by contract between the Federal Ministry and the members of the Executive Board. Such contracts require the consent of the Federal Government.

(7) Where a federal public official is appointed member of the Executive Board, he/she shall retire from his/her previous office at the same time as the official relationship commences. For the duration of the official relationship, the rights and duties associated with being a public official shall be suspended. This shall not apply to the obligation of confidentiality and the prohibition of accepting rewards or gifts. Sentence 2 shall apply until retirement, at the longest.

(8) If the official relationship ends pursuant to subsection (1) sentence 1 and if the person affected does not obtain another official public-law relationship with the Federal Government, public officials shall be assigned to non-active status upon expiry of a three-month period in case they are not appointed to another office subject to the provisions set forth in section 28 (2) of the Federal Civil Servants Act or in similar regulations of the Federal States within the specified period, provided that they have not yet reached the statutory retirement age. In all other respects, the regulations of the Federal Civil Servants Act with regard to the non-active status shall apply. The public officials shall receive the pension they would have earned in their earlier office including the duration of the official relationship pursuant to subsection (1) sentence 1. The period of the official relationship pursuant to subsection (1) sentence 1 shall be counted towards pensionable service also if they are assigned another office in an official relationship with the Federal Government pursuant to sentence 1. Section 107b of the Civil Service Benefits Act (Beamtenversorgungsgesetz) shall apply mutatis mutandis to the public officials among the members of the Executive Board. Any contractual pension arrangements pursuant to subsection (6) shall remain unaffected. The provisions of the Civil Service Benefits Act regarding pensions and allowances shall apply accordingly.

(9) Subsections (7) and (8) shall apply mutatis mutandis to judges and professional members of the Armed Forces.

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Section 9a
Public officials

(1) The Supervisory Authority is granted the right to have public officials (Beamte).

(2) The President of the Supervisory Authority nominates the public officials belonging to grades A 2 to A 16 of remuneration code A. The President of the Federal Republic of Germany nominates the other public officials.

(3) For the public officials, the supreme official authority is the Supervisory Authority’s President. The President may delegate his/her powers to one or more member(s) of the Executive Board pursuant to this subsection.

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Section 10
Public employees, manual workers and trainees

(1) The federal collective agreements and other provisions for federal employees and trainees shall be applied to the public employees, manual workers and trainees of the Supervisory Authority.

(2) Subject to approval by the Administrative Council, public employees may also be employed under an agreement outside the collective agreement in excess of the highest collectively agreed remuneration scale for public employees to the extent that this is necessary for the performance of their duties. Sentence 1 shall apply mutatis mutandis to the granting in other instances of benefits in excess of or outside the collective agreement.

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Section 11
Obligation of confidentiality

The obligation of confidentiality imposed on the employees of the Supervisory Authority with regard to facts that have become known to them in the performance of their duties is prescribed by the supervisory provisions on the basis of which the individual employee has taken action. Sentence 1 shall apply mutatis mutandis to the members of the Administrative Council and the members of the Advisory Board with regard to the facts coming to their attention in the performance of their duties.

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Part IV
Budget, rendering of accounts, cover of administrative expenses

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Section 12
Budget, rendering of accounts

(1) The Supervisory Authority shows the revenues it expects to accrue and the expenses it expects to incur in its area of competence in its budget, including a staff appointment scheme. The financial year corresponds to the calendar year. The provisions of the Federal Budget Code (Bundeshaushaltsordnung) pertinent to federal institutions with legal personality under public law shall govern payments, bookkeeping and the rendering of accounts.

(2) The budget shall be drawn up by the Executive Board. The Executive Board shall present the draft version of the budget to the Administrative Council without undue delay. The budget shall be adopted by the Administrative Council.

(3) At the end of the financial year the Executive Board shall prepare accounts of the revenues and expenditure of the Supervisory Authority. The Administrative Council shall grant discharge of these accounts subject to approval by the Federal Ministry.

(4) If the accounts show a surplus, this may be carried forward to the following financial year subject to approval by the Administrative Council. Instead of carrying the amount forward, a reserve for future investment projects may be set aside to the amount of the surplus. To become effective, the formation of a reserve requires the approval of the Administrative Council.

(5) The audit of the accounts and the financial management shall be carried out by the body set forth in the articles of association without prejudice to an audit carried out by the Federal Court of Audit (Bundesrechnungshof) pursuant to section 111 of the Federal Budget Code (Bundeshaushaltsordnung). The audit findings shall be passed on to the Executive Board, the Administrative Council and the Federal Ministry as well as to the Federal Court of Audit.

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Section 13
Cover of costs of supervision

(1) The Supervisory Authority shall cover its costs, including the costs charged to the Supervisory Authority by the Deutsche Bundesbank pursuant to section 15 (2), from its own revenues as set out under sections 14 to 16 and from other revenues, unless otherwise specified in sections 17a to 17d. Administrative fines shall not be taken into account.

(2) The Federal Government shall provide the liquidity necessary to ensure orderly cash management in the form of an interest-bearing loan subject to the provisions of the Budget Act (Haushaltsgesetz). The interest rate shall be set by agreement between the Federal Government and the Supervisory Authority. The loan is to be repaid as soon as possible, but no later than at the end of the financial year.

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Part V
Fees and allocation of costs, enforcement measures

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Section 14
Fees for official acts

(1) The Supervisory Authority may charge fees of up to 500,000 euros for official acts performed within the framework of the functions assigned to it, unless the laws applying to the Supervisory Authority contain special provisions on fees, separate reimbursement of costs is provided for under section 15, or separate financing as defined in sections 17a to 17d takes place.

(2) The Federal Ministry may, by means of a Regulation, define the official acts that are liable to fees and the amount of the fees in accordance with subsection (1) in the form of fixed rates or basic fees and by provisions on increases, reductions and exemptions for certain types of official acts. The Federal Ministry may, in doing so, derogate from section 15 of the Administrative Costs Act (Verwaltungskostengesetz). The rates of the fees are to be fixed in such a way that there is a reasonable proportion between the amount of administrative effort involved in the performance of the official act and its importance, economic value or other benefits. The Federal Ministry may, by means of a Regulation, delegate the authority referred to in sentence 1 to the Supervisory Authority.

(3) The Regulation cited in subsection (2) may prescribe that it is also to be applied to administrative proceedings pending at the time of its coming into force, provided the fee has not already been fixed at this point in time.

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Section 15
Separate reimbursement

(1) The costs incurred by the Supervisory Authority

from the appointment of a liquidator under section 37 (1) sentence 2, section 38 (2) sentence 2 or 4 of the Banking Act (Kreditwesengesetz) or of a supervisor under section 46 (1) sentence 2 of the Banking Act, from an announcement under section 32 (4), section 37 (1) sentence 3 or section 38 (3) of the Banking Act, from an audit carried out on the basis of section 44 (1) or (2), section 44b (2) or section 44c (2) also in conjunction with measures under section 44c (3) or (4) of the Banking Act;
from an audit carried out on the basis of section 35 (1) or section 36 (4) of the Securities Trading Act (Wertpapierhandelsgesetz);
from an audit carried out on the basis of section 44 (3) of the Banking Act of the correctness of the data provided for the consolidation under section 10a (6), (7) and (11), section 13b (3) and section 25 (2) of the Banking Act;
from the appointment of a liquidator under section 81f (1) sentence 2, from an audit carried out on the basis of section 83b (2), also in conjunction with measures under section 83b (3), or section 83 (1) sentence 1 no. 2, 3 or 4, also in conjunction with subsection (5a), each of which also in conjunction with section 1a (1), section 105 (3), section 110d (2) sentence 1 and subsection (3), section 113 (1), section 121a (1) sentence 1, section 128 sentence 3, or section 159 (1) sentence 2 of the Insurance Supervision Act (Versicherungsaufsichtsgesetz);
from the appointment or dismissal of an administrator under section 22e of the Banking Act;
from the application for the appointment or dismissal of a creditors’ trustee under section 22l or section 22o of the Banking Act;

from
the appointment of a liquidator under section 17b of the Investment Act (Investmentgesetz) in conjunction with section 38 (2) sentence 2 or 4 of the Banking Act;
an announcement under section 7a (4) of the Investment Act or section 17b of the Investment Act in conjunction with section 38 (3) of the Banking Act;
the appointment of a liquidator under section 17c of the Investment Act in conjunction with section 37 (1) sentence 2 of the Banking Act;
an audit carried out on the basis of section 19g of the Investment Act in conjunction with section 44 (1) or section 44b (2) of the Banking Act;
from an audit carried out on the basis of section 7 (3) sentence 4 of the Deposit Guarantee and Investor Compensation Act (Einlagensicherungs- und Anlegerentschädigungsgesetz) in conjunction with section 44 (1) of the Banking Act, also in conjunction with section 6 (4) sentence 3 or section 12 (2) sentence 1 of the Deposit Guarantee and Investor Compensation Act;
from an audit carried out on the basis of section 12 (2) sentence 2 of the Capital Venture Act (Wagniskapitalbeteiligungsgesetz); or

from
the appointment of a liquidator under section 4 (1) sentence 2 of the Payment Services Supervision Act (Zahlungsdiensteaufsichtsgesetz), under section 10 (3) sentence 1 of the Payment Services Supervision Act in conjunction with section 38 (2) sentence 2 or 4 of the Banking Act, under section 26 (3) or (4), each of which in conjunction with section 4 (1) sentence 2 of the Payment Services Supervision Act, or of a supervisor under section 16 (2) sentence 2 no. 3 of the Payment Services Supervision Act;
an announcement under section 4 (1) sentence 3, under section 26 (3) or (4), each of which in conjunction with section 4 (1) sentence 3, or an announcement under section 10 (4) of the Payment Services Supervision Act;
an audit carried out on the basis of

aa) section 5 (2), also in conjunction with measures under subsection (3) or (4), or section 14 (1) sentence 2 of the Payment Services Supervision Act;

bb)section 26 (3) or (4), each of which in conjunction with section 5 (2), (3) or (4) or section 14 (1) sentence 2 of the Payment Services Supervision Act.
(repealed)

shall be reimbursed separately to the Supervisory Authority, and paid in advance upon request, in the cases of numbers 1, 2, 4, 7, 9 and 10 by the company concerned, in the cases of number 3 by the company obliged to consolidate its own funds, in the cases of number 5 by the company obliged to keep the register, in the cases of number 6 by the companies mentioned under section 22n (4) sentence 2 and 3 of the Banking Act and in the cases of number 8 by the compensation scheme concerned. The costs under sentence 1 also include the costs charged to the Supervisory Authority by the Deutsche Bundesbank and other authorities acting within the framework of such measures on behalf of the Supervisory Authority, as well as the costs for the deployment of own employees.

(2) The Supervisory Authority shall reimburse the Deutsche Bundesbank and the other authorities acting for it within the framework of subsection (1) for their personnel and nonstaff costs. The amount to be reimbursed, in particular the hourly rates for the deployment of the employees of these authorities shall be determined subject to the reimbursement directives issued by the Federal Ministry.

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Section 16
Allocation of costs

(1) To the extent that the costs incurred by the Supervisory Authority are not covered by fees, separate reimbursement under section 15 or other revenues, they shall be allocated on the basis of a suitable allocation formula and on a pro-rated basis taking into account the deficits, the outstanding amounts and surpluses of the previous years to credit institutions, insurance undertakings, financial services institutions, payment institutions, e-money institutions, venture capital companies, asset management companies (Kapitalanlagegesellschaften), investment stock corporations, companies that are admitted to trading on a German stock exchange, and issuers domiciled in Germany whose securities are admitted to trading on a German stock exchange or are included with their consent in the regulated unofficial market (Freiverkehr), and shall be collected by the Supervisory Authority pursuant to the provisions of the Act on Administrative Enforcement (Verwaltungs-Vollstreckungsgesetz).

(2) The Federal Ministry lays down, by means of a Regulation not requiring the consent of the Bundesrat, the details concerning the allocation of the costs, in particular the allocation formula, the cut-off date, the minimum allocation amount, the cost allocation method including a suitable method of estimation in cases where the data are not beyond doubt, the cut-off periods for presenting documentation, the periods allowed for payment, the amount of any surcharges for late payment, the determination of advance payment amounts, the period of limitation, and collection. The rules included in sections 5, 6, 8 and 13 of the Regulation on the Imposition of Fees and Allocation of Costs Pursuant to the FinDAG of 29 April 2002 (Federal Law Gazette I, p. 1504, 1847), last amended by Article 5 of the Act of 1 March 2011 (Federal Law Gazette I, p. 288), shall have force of law and apply with effect as of 1 May 2002. The Regulation may also prescribe rules for the detailed determination of the costs and for the preliminary determination of the allocation amount. The Federal Ministry may, by means of a Regulation, delegate this authority to the Supervisory Authority.

(3) Revenues from the final and non-appealable imposition of coercive fines (Zwangsgelder), from the refunding of expenditure in relation to financial penalties and legal costs and from publications, miscellaneous income and interest from the investment of excess liquidity not taken into account in the cost allocation for 2002 and 2003, are to be deducted from the costs for allocation year 2007.

(4) Subsection (1) in the version in force as from 26 March 2009 shall apply to deficits, outstanding amounts and surpluses which are to be allocated to be allocation year 2009 and later allocation years. Deficits and outstanding amounts which are to allocated to allocation years 2002 to 2008 and have not been allocated or are not being allocated pursuant to subsection (1) in the version in force until 25 March 2009, are to be offset against the surpluses which are to be allocated to allocation years 2002 to 2008 and which have not been allocated or are not being allocated pursuant to section 6 (1) sentence 6 of the Regulation on the Imposition of Fees and Allocation of Costs Pursuant to the FinDAG in the version in force until 25 March 2009. Where the surpluses to be offset pursuant to sentence 2 exceed deficits and outstanding amounts that are to be offset, the excess amount shall be deducted prior to the distribution of overhead costs when determining the allocation of the costs for allocation year 2009 or for later allocation years.

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Section 17
Enforcement measures

The Supervisory Authority may enforce the orders it issues within the scope of its statutory powers by taking enforcement measures under the provisions of the Act on Administrative Enforcement (Verwaltungs-Vollstreckungsgesetz). It may threaten enforcement measures for each failure to comply. It may also take enforcement measures against legal persons governed by public law. The amount of the coercive fine (Zwangsgeld) may be up to 250,000 euros.

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Part VI
Financing separate duties

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Section 17a
Financing separate duties

The Supervisory Authority shows the revenues it expects to accrue and the expenses it expects to incur in its area of competence for performance of its functions pursuant to Part 11 of the Securities Trading Act (Wertpapierhandelsgesetz) and this Part in a separate section of the budget, including a separate staff appointment scheme. The sum of revenues and expenses of the enforcement panel are to be accounted for in this section of the budget and are also to be entered separately. This section of the budget is to be separately adopted by the Administrative Council, based on the enforcement panel’s financial budget approved pursuant to section 342d sentence 2 of the Commercial Code (Handelsgesetzbuch). The costs for activities set forth in sentence 1 shall also be entered separately and shall be dedicated to a separate accounting cycle. Section 12 (1) and (3) to (5) and section 13 (2) sentences 1 and 2 apply mutatis mutandis.

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Section 17b
Fees for separate official acts

(1) The Supervisory Authority may charge fees of up to 500,000 euros for official acts performed within the framework of the functions assigned to it under Part 11 of the Securities Trading Act (Wertpapierhandelsgesetz), unless separate reimbursement of costs is provided for under section 17c. If the Supervisory Authority’s audit establishes that accounting is not faulty, no fees will be charged.

(2) The Federal Ministry may, by means of a Regulation, define the official acts that are liable to fees and the amount of the fees in accordance with subsection (1) in the form of fixed rates or basic fees or by provisions on increases, reductions and exemptions for certain types of official acts. Section 14 (2) sentence 2, 3 and subsection (3) shall apply mutatis mutandis. The Federal Ministry may, by means of a Regulation, delegate this authority to the Supervisory Authority.

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Section 17c
Separate reimbursement for separate audits

The costs incurred by the Supervisory Authority in the performance of its functions pursuant to section 37p (1) sentence 2 no. 1 of the Securities Trading Act (Wertpapierhandelsgesetz) are to be reimbursed separately by the companies within the meaning of section 37n of the Securities Trading Act, and are to be paid in advance upon request. The costs incurred in the performance of its functions pursuant to section 37p (1) sentence 2 no. 1 of the Securities Trading Act are not reimbursed separately if the Supervisory Authority’s audit result differs from the audit result of the enforcement panel to the benefit of the company in question. The costs defined in sentence 1 also include costs charged to the Supervisory Authority by the enforcement panel within the context of its functions set forth in section 37o (3) of the Securities Trading Act or by other bodies commissioned by the Supervisory Authority within the context of such measures, as well as the costs for the deployment of the Supervisory Authority’s own employees. The Federal Ministry may define the details of separate reimbursement by means of a Regulation. The Federal Ministry may, by means of a Regulation, delegate this authority to the Supervisory Authority.

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Section 17d
Separate cost allocation

(1) To the extent that the costs entered separately in accordance with section 17a sentence 4 and the costs required by the enforcement panel to perform its functions pursuant to section 342b of the Commercial Code (Handelsbesetzbuch) are not covered by fees, separate reimbursement or other revenues, they, together with any deficits and outstanding amounts from the previous year, shall be allocated on a pro-rated basis by the Supervisory Authority to all companies whose securities within the meaning of section 2 (1) sentence 1 of the Securities Trading Act (Wertpapierhandelsgesetz) are, as at the cut-off date, admitted to trading on the regulated market (regulierter Markt) of a German stock exchange, using a suitable allocation formula based on the companies’ domestic exchange turnover, and shall be collected pursuant to the provisions of the Act on Administrative Enforcement (Verwaltungs-Vollstreckungsgesetz). Minimum and maximum allocation amounts may be defined. With respect to the allocation as defined in sentence 1, the Supervisory Authority may set prepayments based on the costs projected in the budget for the allocation year.

(2) The German stock exchanges shall furnish the Supervisory Authority with the information and documentation on exchange turnover required for determination of the allocation of the costs and prepayments. The Supervisory Authority may require that information and documentation be furnished by the companies if this is necessary for determining the allocation of costs and prepayments.

(3) The Federal Ministry lays down, by means of a Regulation and in agreement with the Federal Ministry of Justice, the details concerning the allocation of the costs and prepayments, in particular the determination of the costs and the allocation formula, the cut-off date, the minimum and maximum allocation amounts, the cost allocation method including a suitable method of estimation if the data are not beyond doubt, the cut-off periods for presenting documentation, the periods allowed for payment, the amount of any surcharges for late payment, collection and compensation of the differential between the prepayment and the allocation amount set, also with respect to prepayments pursuant to section 342d (1) sentence 3 of the Commercial Code. The Regulation may also prescribe rules for the preliminary determination of the allocation amount. With the agreement of the Federal Ministry of Justice, the Federal Ministry of Finance may, by means of a Regulation, delegate this authority to the Supervisory Authority.

(4) The initial allocation of costs must take into account the costs incurred in establishing the enforcement panel, even if they were generated prior to the recognition of the enforcement panel pursuant to section 342b of the Commercial Code.

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Part VII
Transitional and concluding provisions

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Section 18
Transitional provisions

(1) Administrative proceedings pending at the Federal Banking Supervisory Office, the Federal Insurance Supervisory Office and the Federal Securities Supervisory Office shall be continued as of 1 May 2002 by the Supervisory Authority. In pending court proceedings in which the Federal Republic of Germany, represented by the President of the relevant Federal Supervisory Office, is a party or litigant, the Supervisory Authority shall be party or litigant on this Act’s coming into force.

(2) The Federal Administrative Court (Bundesverwaltungsgericht) shall remain responsible for those court proceedings pending under section 10a of the Act on the Establishment of a Federal Insurance Supervisory Office (Gesetz über die Errichtung eines Bundesaufsichtsamtes für das Versicherungswesen). The running of periods shall not be suspended.

(3) (Repealed)

(4) (Repealed)

(5) Until such time as another office is assigned to them, the Presidents and Deputy Presidents of the Federal Banking, Insurance and Securities Supervisory Offices who are in office on 30 April 2002 shall be subject to the provisions of the Federal Civil Service Remuneration Act (Bundesbesoldungsgesetz) in the version in force before the entry into force of Article 14 of the Act on Integrated Financial Services Supervision of April 2002 (Federal Law Gazette I, page 1310).

(6) To the extent that they have not yet been reimbursed, the costs incurred by the Federal Banking Supervisory Office, the Federal Insurance Supervisory Office and the Federal Securities Supervisory Office shall be reimbursed by the companies under supervision for the year 2002 up to 30 April 2002 and for the preceding years to the Supervisory Authority. The Supervisory Authority shall pass these amounts on to the Federal Government.

(7) The members of the Executive Board who are in office on 9 December 2011 shall remain in office. These members of the Executive Board shall be subject to the provisions set forth in section 9 in the version applicable until 9 December 2011 until they are appointed to an office under public law. Furthermore, they shall be subject to the provisions of Annex I of the Federal Civil Service Remuneration Act in the version applicable until 9 December 2011 until they are appointed to another office.

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Section 19
Transfer/taking over of employees

(1) The public officials of the Federal Banking, Insurance and Securities Supervisory Offices shall become public officials of the Supervisory Authority with effect as of 1 May 2002. Section 130 (1) of the Federal Civil Service Framework Act (Beamtenrechtsrahmengesetz) as published on 31 March 1999 (Federal Law Gazette I, page 654) shall apply mutatis mutandis.

(2) To the extent that the costs of pension benefits for the public officials of the Supervisory Authority are not to be borne by the Federal Government pursuant to section 20, the Supervisory Authority shall set aside pension reserves. Sentence 1 shall apply mutatis mutandis to pension entitlements of the members of the Executive Board.

(3) The public employees, manual workers and trainees employed at the Federal Supervisory Offices cited under subsection (1) are transferred with effect as of 1 May 2002 to the Supervisory Authority. The Supervisory Authority assumes the rights and duties arising from contracts of employment and training agreements existing at the time of the transfer without prejudice to section 10 (1).

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Section 20
Distribution of costs of pension benefits

(1) The Supervisory Authority shall pay the pension benefits for the years of service performed at the Supervisory Authority by the public officials transferred to it from the Federal Banking, Insurance and Securities Supervisory Offices.

(2) The Federal Government shall pay the pension benefits for those years of service performed by the public officials between their recruitment at the Federal Banking, Insurance and Securities Supervisory Offices and their transfer to the Supervisory Authority. Section 107b of the Civil Service Benefits Act (Beamtenversorgungsgesetz) shall apply mutatis mutandis.

(3) The Federal Government shall pay the pension provisions for existing recipients of pensions of the Federal Banking, Insurance and Securities Supervisory Offices.

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Section 21
Powers of the Supervisory Authority

(1) Rights and duties established by the Federal Banking, Insurance and Securities Supervisory Offices with respect to the Federal Republic of Germany shall be transferred to the Supervisory Authority.

(2) The movable administrative assets of the Federal Republic of Germany used by the Federal Supervisory Offices at the time of the establishment of the Supervisory Authority shall be transferred to the Supervisory Authority for its use free of charge.

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Section 22
Correction of designations

The Federal Ministry may, by means of a Regulation not requiring the consent of the Bundesrat, replace the designations “Federal Banking Supervisory Office”, “Federal Insurance Supervisory Office” and “Federal Securities Supervisory Office” in laws and regulations not included in the Act on Integrated Financial Services Supervision of 22 April 2002 (Federal Law Gazette I, page 1310) by the designation “Federal Financial Supervisory Authority” and may carry out the linguistic changes this requires.

Act against Restraints of Competition

Act Against Restraints of Competition

Full citation: Act Against Restraints of Competition in the version published on 15 July 2005 (Bundesgesetzblatt (Federal Law Gazette) I, page 2114; 2009 I page 3850), as last amended by Article 3 of the Act of 26 July 2011 (Federal Law Gazette I, page 1554)

 

PART I
Restraints of Competition

 

FIRST CHAPTER
Agreements, Decisions and Concerted Practices Restricting Competition

 

§ 1
Prohibition of Agreements Restricting Competition

Agreements between undertakings, decisions by associations of undertakings and concerted practices, which have as their object or effect the prevention, restriction or distortion of competition, shall be prohibited.

 

§ 2
Exempted Agreements

(1) Agreements between undertakings, decisions by associations of undertakings or concerted practices, which, while allowing consumers a fair share of the resulting benefit, contribute to improving the production or distribution of goods or to promoting technical or economic progress, and which do not

1. impose on the undertakings concerned restrictions which are not indispensable to the attainment of these objectives, or

2. afford such undertakings the possibility of eliminating competition in respect of a substantial part of the products in question

shall be exempted from the prohibition of § 1.

(2) For the application of paragraph 1, Regulations of the Council or the Commission of the European Community on the application of Article 81 (3) of the Treaty Establishing the European Community to certain categories of agreements, decisions by associations of undertakings and concerted practices (block exemption regulations), shall apply mutatis mutandis. This shall also apply where the agreements, decisions and practices mentioned therein are inappropriate to affect trade between Member States of the European Community.

 

§ 3
Cartels of Small or Medium-Sized Enterprises

(1) Agreements between competing undertakings and decisions by associations of undertakings, whose subject matter is the rationalisation of economic activities through cooperation among enterprises, fulfil the conditions of § 2 (1) if:

1. competition on the market is not significantly affected thereby, and

2. the agreement or the decision serves to improve the competitiveness of small or medium-sized enterprises.

(2) Unless the conditions of Article 81 (1) of the EC Treaty are satisfied, undertakings or associations of undertakings are – upon application – entitled to a decision pursuant to § 32c, provided they demonstrate a significant legal or economical interest in such a decision. This provision becomes ineffective on June 30th 2009.

 

§§ 4 – 18
[Abolished]

 

SECOND CHAPTER
Market Dominance, Restrictive Practices

 

§ 19
Abuse of a Dominant Position

(1) The abusive exploitation of a dominant position by one or several undertakings is prohibited.

(2) An undertaking is dominant where, as a supplier or purchaser of certain kinds of goods or commercial services on the relevant product and geographic market, it:

1. has no competitors or is not exposed to any substantial competition, or

2. has a paramount market position in relation to its competitors; for this purpose, account shall be taken in particular of its market share, its financial power, its access to supplies or markets, its links with other undertakings, legal or factual barriers to market entry by other undertakings, actual or potential competition by undertakings established within or outside the scope of application of this Act, its ability to shift its supply or demand to other goods or commercial services, as well as the ability of the opposite market side to resort to other undertakings.

Two or more undertakings are dominant insofar as no substantial competition exists between them with respect to certain kinds of goods or commercial services and they jointly satisfy the conditions of sentence 1. The relevant geographic market within the meaning of this Act may be broader than the scope of application of this Act.

(3) An undertaking is presumed to be dominant if it has a market share of at least one third. A number of undertakings is presumed to be dominant if it:

1. consists of three or fewer undertakings reaching a combined market share of 50 percent, or

2. consists of five or fewer undertakings reaching a combined market share of two thirds,

unless the undertakings demonstrate that the conditions of competition may be expected to maintain substantial competition between them, or that the number of undertakings has no paramount market position in relation to the remaining competitors.

(4) An abuse exists in particular if a dominant undertaking as a supplier or purchaser of certain kinds of goods or commercial services:

1. impairs the ability to compete of other undertakings in a manner affecting competition in the market and without any objective justification;

2. demands payment or other business terms which differ from those which would very likely arise if effective competition existed; in this context, particularly the conduct of undertakings in comparable markets where effective competition prevails shall be taken into account;

3. demands less favourable payment or other business terms than the dominant undertaking itself demands from similar purchasers in comparable markets, unless there is an objective justification for such differentiation;

4. refuses to allow another undertaking access to its own networks or other infrastructure facilities against adequate remuneration, provided that without such concurrent use the other undertaking is unable for legal or factual reasons to operate as a competitor of the dominant undertaking on the upstream or downstream market; this shall not apply if the dominant undertaking demonstrates that for operational or other reasons such concurrent use is impossible or cannot reasonably be expected.

 

§ 20
Prohibition of Discrimination, Prohibition of Unfair Hindrance

(1) Dominant undertakings, associations of competing undertakings within the meaning of §§ 2, 3, and 28 (1) and undertakings which set retail prices pursuant to § 28 (2), or § 30 (1) sentence 1, shall not directly or indirectly hinder in an unfair manner another undertaking in business activities which are usually open to similar undertakings, nor directly or indirectly treat it differently from similar undertakings without any objective justification.

(2) Paragraph 1 shall also apply to undertakings and associations of undertakings insofar as small or medium-sized enterprises as suppliers or purchasers of certain kinds of goods or commercial services depend on them in such a way that sufficient and reasonable possibilities of resorting to other undertakings do not exist. A supplier of a certain kind of goods or commercial services shall be presumed to depend on a purchaser within the meaning of sentence 1 if this purchaser regularly obtains from this supplier, in addition to discounts customary in the trade or other remuneration, special benefits which are not granted to similar purchasers.

(3) Dominant undertakings and associations of undertakings within the meaning of paragraph 1 shall not use their market position to invite or to cause other undertakings in business activities to grant them advantages without any objective justification. Sentence 1 shall also apply to undertakings and associations of undertakings in relation to the undertakings which depend on them.

(4) Undertakings with superior market power in relation to small and medium-sized competitors shall not use their market position directly or indirectly to hinder such competitors in an unfair manner. An unfair hindrance within the meaning of sentence 1 exists in particular if an undertaking

1. offers food within the meaning of § 2 (2) of the German Food and Feed Code (Lebensmittel- und Futtermittelgesetzbuch, LFGB) below its cost price, or

2. offers other goods or commercial services not merely occasionally below its cost price, or

3. demands from small or medium-sized undertakings with which it competes on the downstream market in the distribution of goods or commercial services a price for the delivery of such goods and services which is higher than the price it itself offers on such market,

unless there is, in each case, an objective justification for this. The offer of food below cost price is objectively justified if such offer is suitable to prevent the deterioration or the imminent unsaleability of the goods at the dealer’s premises by a timely sale, as well as in similarly severe cases. The donation of food to charity organisations for utilisation within the scope of their responsibilities shall not constitute an unfair hindrance.

(5) If on the basis of specific facts and in the light of general experience it appears that an undertaking has used its market power within the meaning of paragraph 4, it shall be incumbent upon this undertaking to disprove the appearance and to clarify such circumstances in its field of business on which legal action may be based, which cannot be clarified by the competitor concerned or by an association referred to in § 33 (2), but which can be easily clarified, and may reasonably be expected to be clarified, by the undertaking against which action is taken.

(6) Trade and industry associations or professional organisations as well as quality mark associations shall not refuse to admit an undertaking if such refusal constitutes an objectively unjustified unequal treatment and would place the undertaking at an unfair competitive disadvantage.

Translator’s Note

The amendment of paragraphs 3 and 4 by Article 1 no. 2 of the Act on the Prevention of Price Abuse in the areas of Energy Supply and the Food Trade (Gesetz zur Bekämpfung von Preismissbrauch im Bereich der Energieversorgung und des Lebensmittelhandels) of 18 December 2007 will be reversed pursuant to Article 1a, Article 3 sentence 2 of such Act with effect from 1 January 2013. The original version, to be reinstated as from such date, of paragraphs 3 and 4 reads as follows:

(3) Dominant undertakings and associations of undertakings within the meaning of paragraph 1 shall not use their market position to invite or to cause other undertakings in business activities to grant them advantages without any objective justification. Sentence 1 shall also apply to undertakings and associations of undertakings within the meaning of paragraph 2 sentence 1, in relation to the undertakings which depend on them.

(4) Undertakings with superior market power in relation to small and medium-sized competitors shall not use their market position directly or indirectly to hinder such competitors in an unfair manner. An unfair hindrance within the meaning of sentence 1 exists in particular if an undertaking offers goods or commercial services not merely occasionally below its cost price, unless there is an objective justification for this.

 

§ 21
Prohibition of Boycott and Other Restrictive Practices

(1) Undertakings and associations of undertakings shall not request another undertaking or other associations of undertakings to refuse to sell or purchase, with the intention of unfairly harming certain undertakings.

(2) Undertakings and associations of undertakings shall not threaten or cause disadvantages, or promise or grant advantages, to other undertakings to induce them to engage in conduct which, under this Act or according to a decision issued by the cartel authority pursuant to this Act, shall not be made the subject matter of a contractual commitment.

(3) Undertakings and associations of undertakings shall not compel other undertakings:

1. to accede to an agreement or decision within the meaning of §§ 2, 3 or 28 (1), or

2. to merge with other undertakings within the meaning of § 37, or

3. to act uniformly in the market with the intention of restraining competition.

(4) It shall be prohibited to cause economic harm to another because he has applied for or suggested action to be taken by the cartel authority.

 

THIRD CHAPTER
Application of the European Competition Law

 

§ 22
Relationship between this Act and Articles 81 and 82 of the Treaty Establishing the European Community

(1) The provisions of this Act may also be applied to agreements between undertakings, decisions by associations of undertakings or concerted practices within the meaning of Article 81 (1) of the EC Treaty, which may affect trade between Member States of the European Community within the meaning of that provision. Pursuant to Article 3 (1) sentence 1 of Council Regulation (EC) No. 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (OJ EC 2003 L1, p.1), Article 81 of the EC Treaty shall also apply in that case.

(2) Pursuant to Article 3 (2) sentence 1 of Regulation (EC) No. 1/2003 the application of the provisions of this Act may not lead to the prohibition of agreements between undertakings, decisions by associations of undertakings or concerted practices which may affect trade between Member States of the European Community but which do not restrict competition within the meaning of Article 81 (1) of the EC Treaty, or which fulfil the conditions of Article 81 (3) of the EC Treaty or which are covered by a Regulation for the application of Article 81 (3) of the EC Treaty. The provisions of the Second Chapter shall remain unaffected. In other cases, the primacy of Article 81 of the EC Treaty is determined by the relevant European Community law.

(3) The provisions of this Act may also be applied to practices which constitute an abuse prohibited by Article 82 of the EC Treaty. Pursuant to Article 3 (1) sentence 2 of Council Regulation (EC) No. 1/2003, Article 82 of the EC Treaty shall also apply in that case. The application of stricter provisions of this Act shall remain unaffected.

(4) Without prejudice to European Community law, paragraphs 1 to 3 do not apply to the extent that provisions concerning the control of concentrations are applied. Provisions that predominantly pursue an objective different from that pursued by Articles 81 and 82 of the EC Treaty shall not be affected by the provisions of this chapter.

 

§ 23
[Abolished]

 

FOURTH CHAPTER
Competition Rules

 

§ 24
Definition, Application for Recognition

(1) Trade and industry associations and professional organisations may establish competition rules within their sphere of business.

(2) Competition rules are provisions which regulate the conduct of undertakings in competition for the purpose of counteracting conduct which violates the principles of fair competition or effective competition based on performance, and of encouraging conduct in competition which is in line with these principles.

(3) Trade and industry associations and professional organisations may apply to the cartel authority for recognition of competition rules.

(4) Applications for recognition of competition rules shall contain:

1. the name, legal form and address of the trade and industry association or professional organisation;

2. the name and address of the person representing it;

3. a description of the subject matter and the territorial scope of the competition rules;

4. the text of the competition rules.

The following must be attached to the application:

1. the by-laws of the trade and industry association or professional organisation;

2. proof that the competition rules were established in conformity with the by-laws;

3. a list of unrelated trade and industry associations or professional organisations and undertakings at the same level of the economy as well as the suppliers’ and purchasers’ associations and the federal organisations for the relevant levels of the sector of the economy concerned.

The application may not contain or use incorrect or incomplete information in order surreptitiously to obtain recognition of a competition rule for the applicant or for a third party.

(5) Changes and amendments to recognised competition rules shall be notified to the cartel authority.

 

§ 25
Comments by Third Parties

The cartel authority shall give an opportunity to comment to third-party undertakings at the same level of the economy, to trade and industry associations and professional organisations of the suppliers and purchasers affected by the competition rules, as well as to the federal organisations of the levels of the economy involved. This shall also apply to consumer advice centers and other consumer associations supported by public funds if consumer interests are substantially affected. The cartel authority may hold a public hearing on the application for recognition where everyone shall be free to raise objections against the recognition.

 

§ 26
Recognition

(1) Recognitions are issued by decision of the cartel authority. They shall state that there are no grounds for the cartel authority to make use of the powers conferred to it under the Sixth Chapter.

(2) As far as a competition rule violates the prohibition in § 1 and is not exempted pursuant to §§ 2 or 3, or violates other provisions of this Act, of the Act Against Unfair Competition or of another legal provision, the cartel authority shall reject the application for recognition.

(3) Trade and industry associations and professional organisations shall inform the cartel authority about the cancellation of recognised competition rules which have been established by them.

(4) The cartel authority shall withdraw or revoke the recognition if it subsequently finds that the conditions for refusal of recognition pursuant to paragraph 2 are satisfied.

 

§ 27
Information on Competition Rules, Publications

(1) Recognised competition rules shall be published in the Federal Gazette [Bundesanzeiger] or in the electronic version of the Federal Gazette.

(2) The following shall be published in the Federal Gazette or in the electronic version of the Federal Gazette:

1. applications pursuant to § 24 (3);

2. the setting of dates for hearings pursuant to § 25 sentence 3;

3. the recognition of competition rules as well as any changes and amendments thereto;

4. the refusal of recognition pursuant to § 26 (2), the withdrawal or revocation of the recognition of competition rules pursuant to § 26 (4).

(3) The publication of applications pursuant to paragraph 2 no. 1 shall include a note to the effect that the competition rules whose recognition has been requested are open to public inspection at the cartel authority.

(4) Insofar as applications pursuant to paragraph 2 no. 1 result in recognition, reference to the publication of the applications shall suffice for the purpose of publishing the recognition.

(5) With respect to recognised competition rules which have not been published pursuant to paragraph 1, the cartel authority shall, upon request, provide information on the particulars provided pursuant to § 24 (4) sentence 1.

 

FIFTH CHAPTER
Special Provisions for Certain Sectors of the Economy

 

§ 28
Agriculture

(1) § 1 shall not apply to agreements between agricultural producers or to agreements and decisions of associations of agricultural producers and federations of such associations of agricultural producers which concern:

1. the production or sale of agricultural products, or

2. the use of joint facilities for the storage, treatment or processing of agricultural products,

provided that they do not fix prices and do not exclude competition. Plant breeding and animal breeding undertakings as well as undertakings operating at the same level of business shall also be deemed to be agricultural producers.

(2) § 1 shall not apply to vertical resale price maintenance agreements concerning the sorting, labelling or packaging of agricultural products.

(3) Agricultural products shall be the products listed in Annex I to the EC Treaty as well as the goods arising from the treatment or processing of such products, insofar as they are commonly treated or processed by agricultural producers or their associations.

 

§ 29
Energy Sector

An undertaking, which is a supplier of electricity or pipeline gas (public utility company) on a market in which it, either alone or together with other public utility companies, has a dominant position, is prohibited from abusing such position by

1. demanding fees or other business terms which are less favourable than those of other public utility companies or undertakings in comparable markets, unless the public utility company provides evidence that such deviation is objectively justified, whereby the reversal of the burden of demonstration and proof (Darlegungs- und Beweislast) shall only apply in proceedings before the cartel authorities, or

2. demanding fees which unreasonably exceed the costs.

Costs that would not arise to the same extent if competition existed must not be taken into consideration in determining whether an abuse within the meaning of sentence 1 exists. §§ 19 and 20 remain unaffected.

 

§ 30
Resale Price Maintenance for Newspapers and Magazines

(1) § 1 shall not apply to resale price maintenance by which an undertaking producing newspapers or magazines requires the purchasers of these products by legal or economic means to demand certain resale prices or to impose the same commitment upon their own customers, down to the resale to the final consumer. Newspapers and magazines shall include products which reproduce or substitute newspapers or magazines and, upon assessment of all circumstances, must be considered as predominantly characteristic of publishing, as well as combined products, the main feature of which is a newspaper or magazine.

(2) Agreements of the kind defined in paragraph 1 shall be made in writing as far as they concern prices and price components. It shall suffice for the parties to sign documents referring to a price list or to price information. § 126 (2) of the Civil Code [Bürgerliches Gesetzbuch] shall be inapplicable.

(3) The Bundeskartellamt [Federal Cartel Office] may, acting ex officio or upon the request of a bound purchaser, declare the resale price maintenance to be of no effect and prohibit the implementation of a new and equivalent resale price maintenance if:

1. the resale price maintenance is applied in an abusive manner, or

2. the resale price maintenance or its connection with other restraints of competition is capable of increasing the price of the bound goods, or of preventing their prices from decreasing, or of restricting their production or sales.

 

§ 31
[Abolished]

 

SIXTH CHAPTER
Powers of the Cartel Authorities, Sanctions

 

§ 32
Termination and Subsequent Finding of Infringements

(1) The cartel authority may require the undertakings or associations of undertakings to bring to an end an infringement of a provision of this Act or of Articles 81 or 82 of the EC Treaty.

(2) For this purpose, it may impose on undertakings and associations of undertakings all measures which are necessary to effectively bring the infringement to an end and are proportionate to the infringement established.

(3) To the extent that a legitimate interest exists the cartel authority may also declare that an infringement has occurred after an infringement has been brought to an end.

 

§ 32a
Interim Measures

(1) In cases of urgency the cartel authority may order interim measures ex officio if there is a risk of serious and irreparable damage to competition.

(2) Orders pursuant to paragraph 1 shall be limited in time. The time period may be extended. It should not normally exceed one year in total.

 

§ 32b
Commitments

(1) Where, in the course of proceedings under § 32, undertakings offer to enter into commitments which are capable of dispelling the concerns communicated to them by the cartel authority upon preliminary assessment, the cartel authority may by way of a decision declare those commitments to be binding on the undertakings. The decision shall state that subject to the provisions of paragraph 2 the cartel authority will not make use of its powers under §§ 32 and 32a. It may be limited in time.

(2) The cartel authority may rescind the decision pursuant to paragraph 1 and reopen the proceedings where:

1. the factual circumstances have subsequently changed in an aspect that is material for the decision;

2. the undertakings concerned do not meet their commitments; or

3. the decision was based on incomplete, incorrect or misleading information provided by the parties.

 

§ 32c
No Grounds for Action

The cartel authority may decide that there are no grounds for it to take any action if, on the basis of the information available to it, the conditions for a prohibition pursuant to §§ 1, 19 to 21 and 29, Article 81 paragraph 1 or Article 82 of the EC Treaty are not satisfied. The decision shall state that, subject to new findings the cartel authority will not make use of its powers under §§ 32 and 32a. It does not include an exemption from a prohibition within the meaning of sentence 1.

 

§ 32d
Withdrawal of Exemption

If agreements, decisions by associations of undertakings or concerted practices falling under a block exemption regulation have effects in a particular case which are incompatible with § 2 (1) or with Article 81 (3) of the EC Treaty and which arise in a domestic territory bearing all the characteristics of a distinct geographic market, the cartel authority may withdraw the benefit of the block exemption for that territory.

 

§ 32e
Investigations into Sectors of the Economy and into Types of Agreements

(1) If the rigidity of prices or other circumstances suggest that domestic competition may be restricted or distorted, the Bundeskartellamt and the supreme Land authorities may conduct an investigation into a specific sector of the economy or – across sectors into a particular type of agreement.

(2) In the course of this investigation the Bundeskartellamt and the supreme Land authorities may conduct the inquiries necessary for the application of this Act or of Articles 81 or 82 of the EC Treaty. They may request information from the undertakings and associations concerned, in particular information on all agreements, decisions and concerted practices.

(3) The Bundeskartellamt and the supreme Land authorities may publish a report on the results of the investigation pursuant to paragraph 1 and may invite third parties to comment.

(4) §§ 57 and 59 to 62 shall apply mutatis mutandis.

 

§ 33
Claims for Injunctions, Liability for Damages

(1) Whoever violates a provision of this Act, Articles 81 or 82 of the EC Treaty or a decision taken by the cartel authority shall be obliged to the person affected to remediate and, in case of danger of recurrence, to refrain from his conduct. A claim for injunction already exists if an infringement is foreseeable. Affected persons are competitors or other market participants impaired by the infringement.

(2) The claims pursuant to paragraph 1 may also be asserted by associations with legal capacity for the promotion of commercial or independent professional interests, provided they have a significant number of member undertakings selling goods or services of a similar or related type on the same market, provided they are able, in particular with regard to their human, material and financial resources, to actually exercise their statutory functions of pursuing commercial or independent professional interests, and provided the infringement affects the interests of their members.

(3) Whoever intentionally or negligently commits an infringement pursuant to paragraph 1 shall be liable for the damages arising therefrom. If a good or service is purchased at an excessive price, a damage shall not be excluded on account of the resale of the good or service. The assessment of the size of the damage pursuant to § 287 of the Code of Civil Procedure [Zivilprozessordnung] may take into account, in particular, the proportion of the profit which the undertaking has derived from the infringement. From the occurrence of the damage, the undertaking shall pay interest on its obligations to pay money pursuant to sentence 1. §§ 288 and 289 sentence 1 of the Civil Code shall apply mutatis mutandis.

(4) Where damages are claimed for an infringement of a provision of this Act or of Article 81 or 82 of the EC Treaty, the court shall be bound by a finding that an infringement has occurred, to the extent such a finding was made in a final decision by the cartel authority, the Commission of the European Community, or the competition authority or court acting as such in another Member State of the European Community. The same applies to such findings in final judgments resulting from appeals against decisions pursuant to sentence 1. Pursuant to Article 16 (1), sentence 4 of Regulation (EC) No. 1/2003 this obligation applies without prejudice to the rights and obligations under Article 234 of the EC Treaty.

(5) The limitation period of a claim for damages pursuant to paragraph 3 shall be suspended if proceedings are initiated by the cartel authority for infringement within the meaning of paragraph 1, or by the Commission of the European Community or the competition authority of another Member State of the European Community for infringement of Article 81 or 82 of the EC Treaty. § 204 (2) of the Civil Code shall apply mutatis mutandis.

 

§ 34
Skimming off of Benefits by the Cartel Authority

(1) If an undertaking has intentionally or negligently violated a provision of this Act, Article 81 or 82 of the EC Treaty or a decision of the cartel authority and thereby gained an economic benefit, the cartel authority may order the skimming off of the economic benefit and require the undertaking to pay a corresponding amount of money.

(2) Paragraph 1 shall not apply if the economic benefit has been skimmed off by the payment of damages, or the imposition of a fine, or an order of forfeiture. To the extent payments pursuant to sentence 1 are made by the undertaking only after the skimming off of benefits, the undertaking shall be reimbursed its funds in the amount of the proven payments.

(3) If the skimming off of benefits would result in undue hardship, the order shall be limited to a reasonable amount of money or not be issued at all. It shall also be omitted if the economic benefit is insignificant.

(4) The amount of the economic benefit may be estimated. The amount of money to be paid shall be specified.

(5) The skimming off of benefits may be ordered only within a time limit of up to five years from termination of the infringement, and only for a time period not exceeding five years. § 81 (9) shall apply mutatis mutandis.

 

§ 34a
Skimming off of Benefits by Associations

(1) Whoever intentionally commits an infringement within the meaning of § 34 (1) and thereby gains an economic benefit at the expense of multiple purchasers or suppliers may be required by those entitled to an injunction under § 33 (2) to surrender the economic benefit to the federal budget, to the extent that the cartel authority does not order the skimming off of the economic benefit by the imposition of a fine, by forfeiture or pursuant to § 34 (1).

(2) Payments made by the undertaking because of the infringement shall be deducted from the claim. § 34 (2) sentence 2 shall apply mutatis mutandis.

(3) If several creditors claim the skimming off of benefits, §§ 428 to 430 of the Civil Code shall apply mutatis mutandis.

(4) The creditors shall supply the Bundeskartellamt with information about the assertion of claims pursuant to paragraph 1. They may demand reimbursement from the Bundeskartellamt for the expenses necessary for asserting the claim, to the extent they are unable to receive reimbursement from the party liable. The claim for reimbursement is limited to the amount of the economic benefit paid to the federal budget.

(5) § 33 (4) and (5) shall apply mutatis mutandis.

 

SEVENTH CHAPTER
Control of Concentrations

 

§ 35
Scope of Application of the Control of Concentrations

(1) The provisions on the control of concentrations shall apply if in the last business year preceding the concentration:

1. the combined aggregate worldwide turnover of all the undertakings concerned was more than EUR 500 million, and

2. the domestic turnover of at least one undertaking concerned was more than EUR 25 million and that of another undertaking concerned was more than EUR 5 million.

(2) Paragraph 1 shall not apply:

1. where an undertaking which is not dependent within the meaning of § 36 (2) and had a worldwide turnover of less than EUR 10 million in the last business year, merges with another undertaking, or

2. as far as a market is concerned on which goods or commercial services have been offered for at least five years and which had a sales volume of less than EUR 15 million in the last calendar year.

Where the concentration restricts the competition in the field of publishing, producing or distributing newspapers or magazines or parts thereof, only sentence 1 no. 2 shall be applied.

(3) The provisions of this Act shall not apply where the Commission of the European Communities has exclusive jurisdiction pursuant to Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings, as amended.

 

§ 36
Principles for the Appraisal of Concentrations

(1) A concentration which is expected to create or strengthen a dominant position shall be prohibited by the Bundeskartellamt unless the undertakings concerned prove that the concentration will also lead to improvements of the conditions of competition and that these improvements will outweigh the disadvantages of dominance.

(2) If an undertaking concerned is a dependent or dominant undertaking within the meaning of § 17 of the Stock Corporation Act [Aktiengesetz] or a group company within the meaning of § 18 of the Stock Corporation Act, then the undertakings so affiliated shall be regarded as a single undertaking. Where several undertakings act together in such a way that they can jointly exercise a dominant influence on another undertaking, each of them shall be regarded as dominant.

(3) If a person or association of persons which is not an undertaking holds a majority interest in an undertaking, it shall be regarded as an undertaking.

 

§ 37
Concentration

(1) A concentration shall arise in the following cases:

1. acquisition of all or of a substantial part of the assets of another undertaking;

2. acquisition of direct or indirect control by one or several undertakings of the whole or parts of one or more other undertakings. Control shall be constituted by rights, contracts or any other means which, either separately or in combination and having regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on an undertaking having regard to all factual and legal circumstances, in particular through:

a) ownership or the rights to use all or parts of the assets of the undertaking,

b) rights or contracts which confer decisive influence on the composition, voting or decisions of the organs of the undertaking;

3. acquisition of shares in another undertaking if the shares, either separately or in combination with other shares already held by the undertaking, reach:

a) 50 percent or

b) 25 percent

of the capital or the voting rights of the other undertaking. The shares held by the undertaking shall also include the shares held by another for the account of this undertaking and, if the owner of the undertaking is a sole proprietor, also any other shares held by him. If several undertakings simultaneously or successively acquire shares in another undertaking to the extent mentioned above, this shall be deemed to also constitute a concentration among the undertakings concerned with respect to those markets on which the other undertaking operates;

4. any other combination of undertakings enabling one or several undertakings to directly or indirectly exercise a competitively significant influence on another undertaking.

(2) A concentration shall also arise if the undertakings concerned had already merged previously, unless the concentration does not result in a substantial strengthening of the existing affiliation between the undertakings.

(3) If credit institutions, financial institutions or insurance undertakings acquire shares in another undertaking for the purpose of resale, this shall not be deemed to constitute a concentration as long as they do not exercise the voting rights attached to the shares and provided the resale occurs within one year. This time limit may, upon application, be extended by the Bundeskartellamt if it is substantiated that the resale was not reasonably possible within this period.

 

§ 38
Calculation of Turnover and Market Shares

(1) § 277 (1) of the Commercial Code [Handelsgesetzbuch] shall apply to the calculation of turnover. Revenues from the supply of goods and services between affiliated undertakings (intra-group revenues) as well as excise taxes shall not be taken into account.

(2) For trade in goods, only three quarters of the turnover shall be taken into account.

(3) For the publication, production and distribution of newspapers, magazines and parts thereof and for the production, distribution and broadcasting of radio and television programs and the sale of radio and television advertising time, the twenty-fold amount of the turnover shall be taken into account.

(4) In the case of credit institutions, financial institutions and building and loan associations, the turnover shall be replaced by the total amount of the proceeds referred to in § 34 (2) sentence 1 no. 1 point (a-e) of the Regulation on the Rendering of Accounts of Credit Institutions [Verordnung über die Rechnungslegung der Kreditinstitute] of 10 February 1992 (Federal Law Gazette [Bundesgesetzblatt] I p. 203), minus value added tax and other taxes assessed directly on the basis of such proceeds. In the case of insurance undertakings, the premium income in the last completed business year shall be relevant. Premium income shall be income from insurance and reinsurance business including the portions ceded for cover.

(5) In the case of an acquisition of the assets of another undertaking, the calculation of the market shares and the turnover of the seller shall take into account only the assets sold.

 

§ 39
Obligation to Notify

(1) Concentrations shall be notified to the Bundeskartellamt pursuant to paragraphs 2 and 3 prior to being put into effect.

(2) The obligation to notify shall be:

1. upon the undertakings participating in the concentration,

2. in the cases of § 37 (1) no. 1 and 3, also upon the seller.

(3) The notification shall indicate the form of the concentration. Furthermore, the notification shall contain the following particulars with respect to every undertaking concerned:

1. name or other designation and place of business or registered seat;

2. type of business;

3. the turnover in Germany, in the European Union and worldwide; instead of the turnover, the total amount of the proceeds within the meaning of § 38 (4) shall be indicated in the case of credit institutions, financial institutions and building and loan associations, and the premium income in the case of insurance undertakings;

4. the market shares, including the bases for their calculation or estimate, if the combined shares of the undertakings concerned amount to at least 20 per cent in the scope of application of this Act or in a substantial part thereof ;

5. in the case of an acquisition of shares in another undertaking, the size of the interest acquired and of the total interest held;

6. a person authorised to accept service in Germany if the registered seat of the undertaking is not located within the scope of application of this Act.

In the cases of § 37 (1) no. 1 or 3, the particulars pursuant to sentence 2 no. 1 and 6 shall also be given with respect to the seller. If an undertaking concerned is an affiliated undertaking, the particulars required under sentence 2 no. 1 and 2 shall also be given with respect to the affiliated undertakings, and the particulars required under sentence 2 no. 3 and 4 with respect to each undertaking participating in the concentration and with respect to the entirety of all undertakings affiliated to it; intra-group relationships as well as control relationships among and interests held by the affiliated undertakings shall be reported. The notification shall not contain or use any incorrect or incomplete information in order to cause the cartel authority to refrain from issuing a prohibition pursuant to § 36 (1) or from issuing a notice pursuant to § 40 (1).

(4) A notification shall not be required if the Commission of the European Communities has referred a concentration to the Bundeskartellamt and if the particulars required under paragraph 3 have been provided to the Bundeskartellamt in German. The Bundeskartellamt shall inform the undertakings concerned without delay of the time of receipt of the referral and shall at the same time inform them of the extent to which the necessary particulars pursuant to paragraph 3 are available in German.

(5) The Bundeskartellamt may request from each undertaking concerned information on market shares, including the bases for their calculation or estimate, and on the turnover achieved by the undertaking in the last business year preceding the concentration in a certain kind of goods or commercial services.

(6) The undertakings participating in the concentration shall notify the Bundeskartellamt without delay after having put the concentration into effect.

 

§ 40
Procedure of Control of Concentrations

(1) The Bundeskartellamt shall not prohibit a concentration notified to it unless it informs the notifying undertakings within a period of one month from receipt of the complete notification that it has initiated an examination of the concentration (main examination proceedings). The main examination proceedings should be initiated if a further examination of the concentration is necessary.

(2) In the main examination proceedings, the Bundeskartellamt shall decide by decision whether the concentration is prohibited or cleared. If the decision is not served upon the notifying undertakings within a period of four months from receipt of the complete notification, the concentration is deemed to be cleared. The parties involved in the proceedings have to be informed without delay of the date when the decision was served. This shall not apply if:

1. the notifying undertakings have consented to an extension of the time limit,

2. the Bundeskartellamt has refrained from issuing the notice pursuant to paragraph 1 or from prohibiting the concentration because of incorrect particulars or because of information pursuant to § 39 (5) or § 59 not having been provided in time;

3. contrary to § 39 (3) sentence 2 no. 6, a person authorised to accept service in Germany is no longer named.

(3) The clearance may be granted subject to conditions and obligations. These shall not aim at subjecting the conduct of the undertakings concerned to a continued control.

(3a) The clearance may be revoked or modified if it is based on incorrect particulars, has been obtained by means of deceit or if the undertakings concerned do not comply with an obligation attached to the clearance. In the case of non-performance of an obligation § 41 (4) shall apply mutatis mutandis.

(4) Prior to a prohibition, the supreme Land authorities in whose territory the undertakings concerned have their registered seat shall be given opportunity to comment.

(5) In the cases of § 39 (4) sentence 1 the time limits referred to in paragraphs 1 and 2 sentence 2 shall begin to run when the referral decision is received by the Bundeskartellamt and the necessary particulars pursuant to § 39 (3) are available in German.

(6) If the clearance by the Bundeskartellamt is repealed in whole or in part by a final and binding ruling, the time limit referred to in paragraph 2 sentence 2 shall begin to run anew at the time at which the ruling becomes final and binding.

 

§ 41
Prohibition of Putting a Concentration into Effect, Dissolution

(1) The undertakings shall not, before the expiry of the time limit referred to in § 40 (1) sentence 1 and (2) sentence 2, put into effect a concentration not cleared by the Bundeskartellamt, nor participate in putting into effect such a concentration. Legal transactions violating this prohibition shall be of no effect. This shall not apply to real estate agreements once they have become legally valid by entry into the cadastral register and to agreements on the transformation, integration or formation of an undertaking and to enterprise agreements within the meaning of §§ 291 and 292 of the Stock Corporation Act, once they have become legally valid by entry into the appropriate register.

(2) The Bundeskartellamt may, upon application, grant exemptions from the prohibition of putting a concentration into effect if the undertakings concerned put forward important reasons for this, in particular to prevent serious damage to a participating undertaking or to a third party. The exemption may be granted at any time, even prior to notification, and may be made subject to conditions and obligations. § 40 (3a) shall apply mutatis mutandis.

(3) A concentration which has been put into effect and which fulfils the conditions for prohibition pursuant to § 36 (1) shall be dissolved unless the Federal Minister of Economics and Technology authorises the concentration pursuant to § 42. The Bundeskartellamt shall order the measures necessary to dissolve the concentration. The restraint of competition may also be removed in other ways than by restoring the former situation.

(4) To enforce its order, the Bundeskartellamt may in particular:

1. [abolished]

2. prohibit or limit the exercise of voting rights attached to shares in an undertaking concerned which are owned by another undertaking concerned or are attributable to it,

3. appoint a trustee who shall effect the dissolution of the concentration.

 

§ 42
Ministerial Authorisation

(1) The Federal Minister of Economics and Technology shall, upon application, authorise a concentration prohibited by the Bundeskartellamt if, in a specific case, the restraint of competition is outweighed by advantages to the economy as a whole following from the concentration, or if the concentration is justified by an overriding public interest. In this context the competitiveness of the participating undertakings in markets outside the scope of application of this Act shall also be taken into account. Authorisation may be granted only if the scope of the restraint of competition does not jeopardize the market economy system.

(2) Authorisation may be granted subject to conditions and obligations. § 40 (3) and (3a) shall apply mutatis mutandis.

(3) The application shall be submitted in writing to the Federal Ministry of Economics and Technology within a period of one month from service of the prohibition. If the prohibition is appealed, the period shall run from the date when the prohibition becomes final.

(4) The Federal Minister of Economics and Technology should decide on the application within four months. Prior to the decision, an opinion of the Monopolies Commission shall be obtained, and the supreme Land authorities in whose territory the participating undertakings have their registered seat shall be given an opportunity to comment.

 

§ 43
Publications

(1) The initiation of the main examination proceedings by the Bundeskartellamt pursuant to § 40 (1) sentence 1 and the application for a ministerial authorisation shall be published without delay in the Federal Gazette or in the electronic version of the Federal Gazette.

(2) The following shall be published in the Federal Gazette or in the electronic version of the Federal Gazette:

1. the decision issued by the Bundeskartellamt pursuant to § 40 (2),

2. the ministerial authorisation, its refusal and modification,

3. the withdrawal or revocation of the clearance by the Bundeskartellamt or of the ministerial authorisation,

4. the dissolution of a concentration and the other decisions taken by the Bundeskartellamt pursuant to § 41 (3) and (4).

(3) Publications under paragraphs 1 and 2 shall in each case contain the particulars pursuant to § 39 (3) sentence 1 and sentence 2, nos. 1 and 2.

 

EIGHTH CHAPTER
Monopolies Commission

 

§ 44
Functions

(1) Every two years, the Monopolies Commission [Monopolkommission] shall prepare an opinion assessing the situation and the foreseeable development of business concentration in the Federal Republic of Germany, evaluating the application of the provisions concerning the control of concentrations, and commenting on other topical issues of competition policy. The opinion should cover the situation in the last two full calendar years and be completed by June 30 of the following year. The Federal Government may instruct the Monopolies Commission to prepare further opinions. Moreover, the Monopolies Commission may deliver opinions at its discretion.

(2) The Monopolies Commission shall be bound only by the mandate established by this Act, and shall be independent in pursuing its activities. If a minority holds dissenting views when an opinion is drafted, it may express them in the opinion.

(3) The Monopolies Commission shall submit its opinions to the Federal Government. The Federal Government shall without delay submit opinions pursuant to paragraph 1 sentence 1 to the legislative bodies and present its views and comments within a reasonable period. The opinions shall be published by the Monopolies Commission. In the case of opinions pursuant to paragraph 1 sentence 1, this shall be done at the time at which they are submitted by the Federal Government to the legislative body.

 

§ 45
Members

(1) The Monopolies Commission shall consist of five members who shall have special knowledge and experience in the fields of economics, business administration, social policy, technology or commercial law. The Monopolies Commission shall elect a chairman from among its members.

(2) The members of the Monopolies Commission shall be appointed for a term of four years by the Federal President on a proposal by the Federal Government. Re-appointments shall be permissible. The Federal Government shall hear the members of the Commission before nominating new members. The members are entitled to resign from office by giving notice to the Federal President. If a member leaves office prematurely, a new member shall be appointed for the former member’s term of office.

(3) The members of the Monopolies Commission shall not be members of the government or any legislative body of the Federation or a Land, or of the public service of the Federation, a Land or any other legal person under public law, except as university lecturers or staff members of a scientific institution. Furthermore, they shall neither represent nor be bound by a permanent employment or service relationship to an industry association or an employers’ or employees’ organisation. Furthermore, they shall not have held such a position during the year preceding their appointment to the Monopolies Commission.

 

§ 46
Decisions, Organisation, Rights and Duties of the Members

(1) Decisions of the Monopolies Commission shall require the agreement of at least three members.

(2) The Monopolies Commission has rules of procedure and a secretariat. The function of the latter is to scientifically, administratively and technically support the Monopolies Commission.

(2a) As far as required for the proper fulfilment of its functions the Monopolies Commission shall be granted access to the files maintained by the cartel authority, including access to operating and business secrets and personal data.

(3) The members of the Monopolies Commission and the staff of the secretariat shall be obliged to keep secret the deliberations and the documents designated as confidential by the Monopolies Commission. The secrecy obligation shall relate also to information given to the Monopolies Commission and designated as confidential, or obtained pursuant to paragraph 2a.

(4) The members of the Monopolies Commission shall receive a lump-sum compensation and they shall be reimbursed for their travel expenses. These shall be determined by the Federal Ministry of Economics and Technology in agreement with the Federal Ministry of the Interior. The costs of the Monopolies Commission shall be borne by the Federal Republic.

 

§ 47
Transmission of Statistical Data

(1) For the purpose of preparing opinions on the development of business concentration, the Monopolies Commission may be provided by the Federal Statistical Office [Statistisches Bundesamt] with such summarised data from the business statistics kept by it (statistics on the manufacturing industry, crafts, foreign trade, taxes, transport, statistics on wholesale and retail trade, the hotel and restaurant business and service sector) as concern the percentage shares of the largest undertakings, businesses or divisions of undertakings in the respective sector of economy in the:

a) value of goods produced for sale,

b) turnover,

c) number of employees,

d) total wages and salaries paid,

e) investments,

f) value of fixed assets rented or leased,

g) value added or gross proceeds,

h) number of the respective units.

Sentence 1 applies mutatis mutandis to the provision of information about the percentage shares of the largest undertakings. For collation purposes the Monopolies Commission shall provide the Federal Statistical Office with the names and addresses of the companies, their affiliation according to company group and their identification codes. The summarised data shall not concern fewer than three groups of undertakings, undertakings, businesses or divisions of undertakings. The combination or time proximity with other information provided or generally accessible shall not allow conclusions concerning summarised information with regard to less than three groups of undertakings, undertakings, businesses or divisions of undertakings. This shall apply mutatis mutandis to the calculation of summarised measures of concentration, in particular Herfindahl indexes and Gini coefficients. The Land statistical offices shall provide the Federal Statistical Office with the requisite particular data.

(2) Persons who are to receive summarised data pursuant to paragraph 1 shall, prior to the transmission, be specifically committed to secrecy unless they hold a public office or have special obligations in the public service. § 1 (2), (3) and (4) no. 2 of the Act on the Obligations of Public Servants [Verpflichtungsgesetz] shall apply mutatis mutandis. Persons specially committed pursuant to sentence 1 shall, for the purpose of the application of the provisions of the Penal Code concerning the violation of personal secrets (§ 203 (2), (4), (5); §§ 204, 205) and official secrets (§ 353b (1)), be treated like persons having special obligations in the public service.

(3) The summarised data may be used only for the purposes for which they were provided. They shall be deleted as soon as the purpose referred to in paragraph 1 has been achieved.

(4) The Monopolies Commission shall take organisational and technical measures to ensure that only holders of a public office, persons having special obligations in the public service or persons committed pursuant to paragraph 2 sentence 1 will receive summarised data.

(5) The transmissions shall be recorded in accordance with § 16 (9) of the Federal Statistics Act. The records shall be kept for at least five years.

(6) When the business statistics mentioned in paragraph 1 are compiled, the undertakings which are questioned shall be informed in writing that pursuant to paragraph 1 the summarised data may be transmitted to the Monopolies Commission.

 

PART II
Cartel Authorities

 

FIRST CHAPTER
General Provisions

 

§ 48
Competence

(1) The cartel authorities are the Bundeskartellamt, the Federal Ministry of Economics and Technology, and the supreme Land authorities competent according to the laws of the respective Land.

(2) Unless a provision of this Act assigns competence for a particular matter to a particular cartel authority, the Bundeskartellamt shall exercise the functions and powers assigned to the cartel authority by this Act if the effect of the restrictive or discriminatory conduct or of a competition rule extends beyond the territory of a Land. In all other cases, the supreme Land authority competent according to the laws of the Land shall exercise these functions and powers.

(3) The Bundeskartellamt shall monitor the degree of transparency, including that of wholesale prices, and the degree and effectiveness of liberalisation as well as the extent of competition on the wholesale and retail levels of the gas and electricity markets and on the gas and electricity exchanges. The Bundeskartellamt shall without delay make the data compiled from its monitoring activities available to the Federal Network Agency (Bundesnetzagentur).

 

§ 49
Bundeskartellamt and Supreme Land Authority

(1) If the Bundeskartellamt institutes proceedings or conducts investigations, it shall at the same time inform the supreme Land authority in whose district the undertakings concerned have their registered seat. If a supreme Land authority institutes proceedings or conducts investigations, it shall at the same time inform the Bundeskartellamt.

(2) The supreme Land authority shall refer a matter to the Bundeskartellamt if the Bundeskartellamt is competent pursuant to § 48 (2) sentence 1. The Bundeskartellamt shall refer a matter to the supreme Land authority if that authority is competent pursuant to § 48 (2) sentence 2.

(3) Upon application by the Bundeskartellamt, the supreme Land authority may refer to the Bundeskartellamt a matter falling under its competence pursuant to § 48 (2) sentence 2, provided this is useful in view of the circumstances of the matter. Upon referral, the Bundeskartellamt shall become the competent cartel authority.

(4) Upon application by the supreme Land authority, the Bundeskartellamt may refer to the supreme Land authority a matter falling under its competence pursuant to § 48 (2) sentence 1, provided this is useful in view of the circumstances of the matter. Upon referral, the supreme Land authority shall become the competent cartel authority. Prior to the referral, the Bundeskartellamt shall inform the other supreme Land authorities concerned. The referral shall not take place if a supreme Land authority concerned objects to it within a time limit to be set by the Bundeskartellamt.

 

§ 50
Implementation of European Law

(1) To the extent they are competent under §§ 48 and 49, the Bundeskartellamt and the supreme Land authorities shall be the competition authorities responsible for the application of Articles 81 and 82 of the EC treaty within the meaning of Article 35 (1) of the Council Regulation (EC) No 1/2003.

(2) If the supreme Land authorities apply Articles 81 and 82 of the EC Treaty, all contacts with the Commission of the European Community or the competition authorities of other Member States of the European Community shall occur via the Bundeskartellamt. The Bundeskartellamt may provide guidance to the supreme Land authorities regarding the implementation of such contacts. In such cases, the Bundeskartellamt shall also attend as representative the Advisory Committee on Restrictive Practices and Dominant Positions pursuant to Article 14 (2) sentence 1 and (7) of Regulation (EC) No 1/2003.

(3) The Bundeskartellamt shall be the exclusively competent competition authority for the cooperation in proceedings of the Commission of the European Community or in proceedings of the competition authorities of other Member States of the European Community for the application of Articles 81 and 82 of the EC Treaty. The procedural provisions which are relevant for the application of this Act shall apply.

(4) The Bundeskartellamt may allow officials of the competition authority of a Member State of the European Community, as well as other accompanying persons authorized by such authority, to accompany its officials at inspections pursuant to Article 22 (1) of Regulation No 1/2003.

(5) In cases other than those falling under paragraphs 1 to 4, the Bundeskartellamt shall exercise the functions assigned to the authorities of the Member States of the European Community in Articles 84 and 85 of the EC Treaty as well as in the Regulations pursuant to Article 83 of the EC Treaty, also in conjunction with other enabling provisions of the EC Treaty. Paragraph 3 sentence 2 shall apply mutatis mutandis .

 

§ 50a
Cooperation within the Network of European Competition Authorities

(1) Article 12 (1) of Regulation No 1/2003 authorizes the cartel authority to provide, for the purpose of applying Articles 81 and 82 of the EC Treaty, the Commission of the European Community and the competition authorities of the other Member States of the European Community with any matter of fact or of law, including confidential information and in particular operating and business secrets, to transmit to them appropriate documents and data, to request these competition authorities to transmit such information, and to receive and use in evidence such information. § 50 (2) shall apply mutatis mutandis.

(2) The cartel authority shall use in evidence the information received only for the purpose of applying Article 81 or Article 82 of the EC Treaty and in respect of the subject-matter for which it was collected by the transmitting authority. However, information exchanged under paragraph 1 may also be used for the application of this Act if provisions of this Act are applied in accordance with Article 12 (2) sentence 2 of Regulation (EC) No 1/2003.

(3) Information received by the cartel authority pursuant to paragraph 1 can only be used in evidence for the purpose of imposing sanctions on natural persons where the law of the transmitting authority foresees sanctions of a similar kind in relation to an infringement of Article 81 or Article 82 of the EC Treaty. Where the conditions set out in sentence 1 are not fulfilled, a use in evidence shall also be possible if the information has been collected in a way which respects the same level of protection of the rights of defence of natural persons as provided for under the rules of the receiving cartel authority. The prohibition to use evidence pursuant to sentence 1 shall not exclude using the evidence against legal persons or associations of persons. However, compliance with prohibitions to use evidence which are based on constitutional law remains unaffected.

 

§ 50b
Other Cooperation with Foreign Competition Authorities

(1) The Bundeskartellamt [Federal Cartel Office] shall have the powers pursuant to § 50a (1) also in other cases in which it cooperates with the Commission of the European Community or with the competition authorities of other States for the purpose of applying provisions of competition law.

(2) The Bundeskartellamt shall forward information pursuant to § 50a (1) only with the proviso that the receiving competition authority:

1. uses the information in evidence only for the purpose of applying provisions of competition law and in respect of the subject-matter for which it was collected by the Bundeskartellamt,

2. respects the protection of confidential information and will transmit such information to third parties only if the Bundeskartellamt agrees to such transmission; this shall also apply to the disclosure of confidential information in legal and administrative procedures.

Confidential information, including operating and business secrets, resulting from merger control proceedings shall only be transmitted by the Bundeskartellamt with the consent of the undertaking which has provided this information.

(3) Provisions concerning legal cooperation in criminal matters as well as Treaties on administrative and legal cooperation shall remain unaffected.

 

§ 50c
Cooperation of Authorities

(1) Irrespective of the form of procedure chosen in a given case the cartel authorities and regulatory authorities may exchange among themselves information including personal data and operating and business secrets, to the extent this is necessary for the performance of their respective competition law functions, and use it in their proceedings. Prohibitions to make use of evidence shall remain unaffected.

(2) In the performance of their functions the cartel authorities shall cooperate with the Federal Financial Supervisory Authority, the German Central Bank and the Media Institutions of the Laender. The authorities mentioned in sentence 1 may, upon request, exchange information among themselves, to the extent this is necessary for the performance of their respective functions. This shall not apply to

1. confidential information, in particular operating and business secrets, as well as

2. information obtained pursuant to § 50a or pursuant to Article 12 of Regulation (EC) No 1/2003.

Sentences 2 and 3 no. 1 shall not affect the provisions on the cooperation with other authorities of the Securities Acquisition and Takeover Act [Wertpapiererwerbs- und Übernahmegesetz] and of the Securities Trade Act [Gesetz über den Wertpapierhandel].

 

SECOND CHAPTER
Bundeskartellamt [Federal Cartel Office]

 

§ 51
Seat, Organisation

(1) The Bundeskartellamt is an independent higher federal authority with its seat in Bonn. It is assigned to the Federal Ministry of Economics and Technology.

(2) Decisions of the Bundeskartellamt shall be made by decision divisions established in accordance with instructions to be issued by the Federal Ministry of Economics and Technology. As for other matters, the President shall determine the allocation and handling of business in the Bundeskartellamt by rules of procedure requiring confirmation by the Federal Ministry of Economics and Technology.

(3) The decisions of the decision divisions shall be made by a chairman and two other members.

(4) The chairman and the other members of the decision divisions shall be civil servants appointed for life and shall be qualified to serve as judges or senior civil servants.

(5) The members of the Bundeskartellamt shall not own or manage any undertakings, nor may they be members of the management board or supervisory board of an undertaking, a cartel, or a trade and industry association or professional organisation.

 

§ 52
Publication of General Instructions

Any general instructions given by the Federal Ministry of Economics and Technology to the Bundeskartellamt with regard to the issuance or non-issuance of decisions pursuant to this Act shall be published in the Federal Gazette.

 

§ 53
Report on Activities

(1) Every two years the Bundeskartellamt shall publish a report on its activities and on the situation and development in its field of responsibilities. The report shall include the general instructions given by the Federal Ministry of Economics and Technology pursuant to § 52. The Bundeskartellamt shall also regularly publish its administrative principles.

(2) The Federal Government shall without delay submit the report of the Bundeskartellamt to the Bundestag together with its comments.

(3) The Bundeskartellamt shall publish a report on its monitoring activities under Section 48 (3) in agreement with the Federal Network Agency if aspects of regulation of the distribution networks are affected, and shall without delay submit the report to the Federal Network Agency.

 

PART III
Procedure

 

FIRST CHAPTER
Administrative Matters

 

I. Proceedings Before Cartel Authorities

 

§ 54
Institution of the Proceedings; Parties

(1) The cartel authority shall, acting on its own initiative or upon request, institute proceedings. If so requested, the cartel authority may, acting on its own initiative, institute proceedings for the protection of a complainant.

(2) Parties to the proceedings before the cartel authority are:

1. those who have applied for the institution of proceedings;

2. cartels, undertakings, trade and industry associations or professional organisations against which the proceedings are directed;

3. persons and associations of persons whose interests will be substantially affected by the decision and who, upon their application, have been admitted by the cartel authority to the proceedings; the interests of consumer advice centres and other consumer associations supported by public funds are substantially affected also in cases in which the decision has effects on numerous consumers and in which therefore the interests of consumers in general are substantially affected.

4. in the cases of § 37 (1) no. 1 or 3, also the seller.

(3) The Bundeskartellamt shall also be a party to proceedings before the supreme Land authorities.

 

§ 55
Preliminary Decision on Jurisdiction

(1) If a party pleads that the cartel authority lacks territorial or subject matter jurisdiction, the cartel authority may issue a preliminary decision on the issue of jurisdiction. Such decision may be challenged independently by way of appeal; the appeal shall have suspensive effect.

(2) If a party fails to plead that the cartel authority lacks territorial or subject matter jurisdiction, an appeal cannot be based upon the contention that the cartel authority erroneously assumed it had jurisdiction.

 

§ 56
Opportunity to Comment, Hearing

(1) The cartel authority shall give the parties an opportunity to comment.

(2) In appropriate cases, the cartel authority may give representatives of the business circles affected by the proceedings an opportunity to comment.

(3) The cartel authority may, acting ex officio or upon request of a party, hold a public hearing. The public shall be excluded from the hearing or from a part thereof if it is to be feared that public order, in particular state security or important operating or business secrets may be endangered. In the cases of § 42 the Federal Ministry of Economics and Technology shall carry out a public hearing; with the consent of the parties a decision may be taken without a hearing.

(4) §§ 45 and 46 of the Administrative Procedure Act shall be applied.

 

§ 57
Investigations, Taking of Evidence

(1) The cartel authority may conduct any investigations and collect any evidence required.

(2) §§ 372 (1), §§ 376, 377, 378, 380 to 387, 390, 395 to 397, 398 (1), §§ 401, 402, 404, 404a, 406 to 409, 411 to 414 of the Code of Civil Procedure shall apply mutatis mutandis to the taking of evidence by inspection, testimony of witnesses, and experts; detention shall not be ordered. The Court of Appeal [Oberlandesgericht] shall decide on appeals.

(3) The testimony of witnesses should be recorded, and the record signed by the investigating member of the cartel authority; if a recording clerk attends, he shall also sign. The records should indicate the place and the date of the hearing as well as the names of those who conducted it and of the parties.

(4) The record shall be read to the witness for his approval or be presented to be read by himself. The approval given shall be recorded and signed by the witness. If the signature is omitted, the reason for this shall be indicated.

(5) The provisions of paragraphs 3 and 4 shall apply mutatis mutandis to the questioning of experts.

(6) The cartel authority may request the Local Court [Amtsgericht] to administer the oath to witnesses if it considers such an oath to be necessary to obtain truthful testimony. The court shall decide whether the oath is to be administered.

 

§ 58
Seizure

(1) The cartel authority may seize objects which may be of importance as evidence in the investigation. The person affected by the seizure shall be informed thereof without delay.

(2) Within three days of the seizure, the cartel authority shall seek judicial confirmation by the Local Court in whose district the seizure took place, if neither the person affected nor any relative of legal age was present at the seizure or if the person affected or, in his absence, a relative of legal age explicitly objected to the seizure.

(3) The person affected may at any time request judicial review of the seizure. He shall be informed of this right. The court having jurisdiction under paragraph 2 shall rule on the request.

(4) The court decision may be appealed. §§ 306 to 310 and 311a of the Code of Criminal Procedure shall apply mutatis mutandis.

 

§ 59
Requests for Information

(1) To the extent necessary to perform the functions assigned to the cartel authority by this Act, the cartel authority may, until its decisions enter into binding force:

1. request from undertakings and associations of undertakings the disclosure of information regarding their economic situation, as well as the surrender of documents; this shall also include general market surveys which serve the purpose of evaluating or analysing the conditions of competition or market situation and are in the possession of the undertaking or the association of undertakings;

2. request from undertakings and associations of undertakings the disclosure of information on the economic situation of undertakings associated with them pursuant to § 36 (2), as well as the surrender of documents of these undertakings, as far this information is at their disposal or as far as existing legal relations enable them to obtain the requested information about the associated undertakings;

3. inspect and examine business documents of undertakings and associations of undertakings on their premises during normal business hours.

Sentence 1 no. 1 and 3 shall apply mutatis mutandis to trade and industry associations and professional organisations with respect to their activities, by-laws, decisions, as well as the number and names of the members affected by the decisions.

(2) The owners of undertakings and their representatives, and in the case of legal persons, partnerships or associations without legal capacity the persons designated as representatives by law or statutes, shall be obliged to surrender the documents requested, make the requested disclosure of information, render the business documents available for inspection and examination, and allow the examination of these business documents as well as access to offices and business premises.

(3) Persons entrusted by the cartel authority to carry out an examination may enter the offices of undertakings and associations of undertakings. The fundamental right under Article 13 of the Basic Law [Grundgesetz] is restricted to this extent.

(4) Searches may be made only by order of the Local Court judge in whose district the search is to be made. Searches are permissible if it is to be assumed that documents are located in the relevant premises which may be inspected and/or examined, and the surrender of which may be requested, by the cartel authority pursuant to paragraph 1. The fundamental right to the inviolability of the home (Article 13 (1) of the Basic Law) is restricted to this extent. §§ 306 to 310 and 311a of the Code of Criminal Procedure shall apply mutatis mutandis to appeals from such orders. If there is imminent danger, the persons referred to in paragraph 3 may conduct the necessary search during business hours without judicial order. A record of the search and its essential results shall be prepared on the spot, showing, if no judicial order was issued, also the facts which led to the assumption that there would be imminent danger.

(5) Persons obliged to provide information may refuse to answer questions if the answers would expose them or their relatives referred to in § 383 (1) no. 1 to 3 of the Code of Civil Procedure to the risk of criminal prosecution or of proceedings under the Administrative Offences Act [Gesetz über Ordnungswidrigkeiten].

(6) Requests for information made by the Federal Ministry of Economics and Technology or the supreme Land authority shall be made by written individual order, those of the Bundeskartellamt by decision. The legal basis, the subject matter and the purpose of the request shall be stated therein and an appropriate time limit shall be fixed for providing the information.

(7) Examinations shall be ordered by the Federal Ministry of Economics and Technology or the supreme Land authority by written individual order, and by the Bundeskartellamt by decision made with the consent of its President. The order or decision shall state the time, the legal basis, the subject matter and the purpose of the examination.

 

§ 60
Preliminary Injunctions

The cartel authority may issue preliminary injunctions to regulate matters on a temporary basis until a final decision is taken on

1. a decision pursuant to § 40 (2), § 41 (3) or a revocation or modification of a clearance pursuant to § 40 (3a),

2. an authorisation pursuant to § 42 (1), its revocation or modification pursuant to § 42 (2) sentence 2,

3. a decision pursuant to § 26 (4), § 30 (3) or § 34 (1).

 

§ 61
Completion of the Proceedings, Reasons for the Decision, Service

(1) Decisions of the cartel authority shall contain a statement of reasons and be served together with advice as to the available legal remedies upon the parties pursuant to the provisions of the Act on Service in Administrative Procedure [Verwaltungszustellungsgesetz]. § 5 (4) of the Act on Service in Administrative Procedure and § 178 (1) no. 2 of the Code of Civil Procedure shall apply mutatis mutandis to undertakings and associations of undertakings as well as to contracting entities within the meaning of § 98. Decisions directed at undertakings with their registered seat outside the scope of application of this Act shall be served by the cartel authority upon the person who was named by the undertaking to the Bundeskartellamt as authorised to accept service. If the undertaking has not named any person authorised to accept service, the cartel authority shall serve the decisions by way of publication in the Federal Gazette.

(2) If proceedings are not completed by way of a decision served upon the parties pursuant to paragraph 1, the parties shall be informed in writing of the completion of the proceedings.

 

§ 62
Publication of Decisions

Decisions of the cartel authority pursuant to § 30 (3), §§ 32 to 32b and § 32d shall be published in the Federal Gazette or in the electronic version of the Federal Gazette. Decisions pursuant to § 32c may be published by the cartel authority.

 

II. Appeals

 

§ 63
Admissibility; Jurisdiction

(1) Decisions of the cartel authority may be appealed. An appeal may be based also upon new facts and evidence.

(2) The appeal shall be open to the parties to the proceedings before the cartel authority (§ 54 (2) and (3)).

(3) An appeal may also be made if the cartel authority fails to take a decision requested in an application and the applicant claims to be entitled to demand such a decision. If the cartel authority without sufficient reason has failed to rule within a reasonable period of time on an application to take a decision, this shall also be deemed a failure to act. Failure to act shall in such a case be regarded as a rejection of the application.

(4) Decisions on an appeal shall be made exclusively by the Court of Appeal for the district in which the cartel authority has its seat and, in the cases of §§ 35 to 42, exclusively by the Court of Appeal for the district in which the Bundeskartellamt has its seat, also if the appeal is directed against a decision of the Federal Ministry of Economics and Technology. § 36 of the Code of Civil Procedure shall apply mutatis mutandis.

 

§ 64
Suspensive Effect

(1) The appeal has suspensive effect insofar as the decision being appealed:

1. [abolished]

2. is a decision taken pursuant to § 26 (4), § 30 (3) or § 34 (1), or

3. revokes or modifies an authorisation pursuant to § 42 (2) sentence 2.

(2) If an appeal is made against a decision to issue a preliminary injunction pursuant to § 60, the appellate court may order that the appealed decision or a part thereof shall enter into force only upon completion of the appeal proceedings or upon the furnishing of security. Such order may be repealed or amended at any time.

(3) § 60 shall apply mutatis mutandis to proceedings before the appellate court. This shall not apply in the cases of § 65.

 

§ 65
Order of Immediate Enforcement

(1) In the cases of § 64 (1), the cartel authority may order the immediate enforcement of the decision if this is required by the public interest or by the prevailing interest of a party.

(2) Orders under paragraph 1 may be issued already before the appeal is filed.

(3) The appellate court may, upon application, entirely or partly restore the suspensive effect of the appeal if:

1. the conditions for issuing an order under paragraph 1 were not satisfied or are no longer satisfied, or

2. there are serious doubts as to the legality of the appealed decision, or

3. the enforcement would result for the party concerned in undue hardship not demanded by prevailing public interests.

In the cases where the appeal has no suspensive effect, the cartel authority may suspend enforcement; such suspension should be made if the conditions of sentence 1 no. 3 are satisfied. The appellate court may, upon application, order the suspensive effect in full or in part if the conditions of sentence 1 no. 2 or 3 are satisfied. If a third party has lodged an appeal against a decision pursuant to § 40 (2), the application by the third party for an order pursuant to sentence 3 is only admissible if the third party claims that its rights are infringed by the decision.

(4) An application under paragraph 3 sentence 1 or 3 shall be admissible already prior to the appeal being lodged. The applicant shall substantiate the facts upon which the application is based. If the decision has already been enforced at the time of the court ruling, the court may also order the enforcement measures to be lifted. Orders restoring or ordering the suspensive effect may be made contingent upon the furnishing of security or upon other conditions. A time limit may also be set.

(5) Decisions on applications pursuant to paragraph 3 may be amended or repealed at any time.

 

§ 66
Time Limits and Formal Requirements

(1) The appeal shall be filed in writing within one month with the cartel authority whose decision is being appealed. That period shall begin upon service of the decision of the cartel authority. If, in the cases of § 36 (1), an application is made for authorisation pursuant to § 42, the period for the appeal against the decision of the Bundeskartellamt shall begin upon service of the order issued by the Federal Ministry of Economics and Technology. Receipt of the appeal by the appellate court within the time limit shall be sufficient.

(2) If no decision is taken on an application (§ 63 (3) sentence 2), the appeal shall not be subject to any time limit.

(3) The appeal shall include a statement of reasons to be filed within two months from the service of the decision being appealed. In the case of paragraph 1 sentence 3, the time limit shall begin upon service of the order issued by the Federal Ministry of Economics and Technology. If such decision is appealed, the time limit shall begin upon the prohibition becoming unappealable. In the case of paragraph 2 the time limit is one month; it shall begin upon the filing of the appeal. The time limit may, upon application, be extended by the presiding judge of the appellate court.

(4) The statement of reasons for the appeal shall contain:

1. a statement as to the extent to which the decision is being appealed and its modification or revocation is being sought,

2. details of the facts and evidence on which the appeal is based.

(5) The appeal and the statement of reasons for the appeal shall be signed by a lawyer admitted to practice before a German court; this shall not apply to appeals by the cartel authorities.

 

§ 67
Parties to the Appeal Proceedings

(1) The following are parties to the proceedings before the appellate court:

1. the appellant,

2. the cartel authority whose decision is being appealed,

3. persons and associations of persons whose interests are substantially affected by the decision and who, upon their application, have been admitted by the cartel authority to the proceedings.

(2) If an appeal is directed against a decision issued by a supreme Land authority, the Bundeskartellamt shall also be a party to the proceedings.

 

§ 68
Mandatory Representation by Lawyers

In proceedings before the appellate court the parties shall be represented by a lawyer admitted to practise before a German court. The cartel authority may be represented by a member of the authority.

 

§ 69
Hearing

(1) The appellate court shall decide on the appeal on the basis of a hearing; with the consent of the parties, a decision may be taken without a hearing.

(2) If the parties, having been summoned in time, do not appear at the hearing or are not duly represented, the case may nevertheless be heard and decided.

 

§ 70
Principle of Investigation

(1) The appellate court shall, acting on its own initiative, investigate the facts.

(2) The presiding judge shall endeavour to have formal defects eliminated, unclear motions explained, relevant motions made, insufficient factual information completed, and all declarations essential for ascertaining and assessing the facts made.

(3) The appellate court may direct the parties to file statements within a specified time on issues requiring clarification, to specify evidence, and to submit documents as well as other evidence in their possession. In the event of failure to observe the time limit, a decision may be made on the basis of the record regardless of evidence which has not been produced.

(4) If a request pursuant to § 59 (6) or an order pursuant to § 59 (7) is challenged by way of appeal, the cartel authority shall substantiate the factual aspects. § 294 (1) of the Code of Civil Procedure shall be applicable. No substantiation shall be required insofar as § 20 presupposes that small or medium-sized enterprises are dependent on undertakings in such a way that sufficient or reasonable alternatives of resorting to other undertakings do not exist.

 

§ 71
Decision on the Appeal

(1) The appellate court shall decide by decree on the basis of its conclusions freely reached from the overall results of the proceedings. The decree may be based only on facts and evidence on which the parties had an opportunity to comment. The appellate court may proceed differently insofar as, for important reasons, in particular to safeguard operating or business secrets, third parties admitted to the proceedings were not allowed to inspect the files, and the content of the files was not part of the pleadings for these reasons. This shall not apply to such parties admitted to the proceedings who are involved in the disputed legal relationship in such a way that the decision can only be made uniformly also in relation to them.

(2) If the appellate court holds the decision of the cartel authority to be inadmissible or unfounded, it shall reverse the decision. If meanwhile the decision has been withdrawn or otherwise become moot, the appellate court shall declare, upon application, that the decision of the cartel authority was inadmissible or unfounded, provided the appellant has a legitimate interest in such a declaration.

(3) If a decision pursuant to §§ 32 to 32b or § 32d has become moot because of a subsequent change of the factual situation or for other reasons, the appellate court shall decree, upon application, whether, to what extent and up to what time the decision was well founded.

(4) If the appellate court holds the refusal or failure to issue the decision to be inadmissible or unfounded, it shall decree the obligation of the cartel authority to issue the decision applied for.

(5) The decision shall also be inadmissible or unfounded if the cartel authority has improperly exercised its discretionary powers, in particular if it has exceeded the statutory limits of its discretionary powers or if it has exercised its discretion in a manner violating the purpose and intent of this Act. The appraisal by the cartel authority of the general economic situation and trends shall not be subject to review by the court.

(6) The decree shall contain a statement of reasons and be served upon the parties together with advice as to the available legal remedies.

 

§ 71a
Relief in Case of Violation of the Right to be Heard

(1) Upon objection of a party aggrieved by a court decision the proceedings shall be continued if

1. an appeal or other legal remedy against the decision is not available, and

2. the court has violated the party’s right to be heard in a manner which is relevant to the decision of the case.

An objection is not permissible against a decision preceding the decision.

(2) The objection shall be raised within two weeks from obtaining knowledge of the violation of the right to be heard; the time at which knowledge was obtained shall be substantiated by prima facie evidence. After the expiration of one year from the announcement of the appealed decision, the objection may no longer be raised. Decisions which are communicated informally are deemed to be announced by the third day after their posting. The objection shall be made in writing or shall be recorded by the clerk of the court the decision of which is appealed. The objection must indicate the decision being appealed and show that the conditions mentioned in paragraph 1 sentence 1 no. 2 are satisfied.

(3) The other parties shall, to the extent necessary, be given an opportunity to comment.

(4) If the objection is not permissible or has not been raised in accordance with the legal form or time limit, it shall be dismissed as inadmissible. If the objection is unfounded, the court shall reject it. The decision is taken by way of a final decree. The decree should be accompanied by a brief statement of reasons.

(5) If the objection is founded, the court shall grant relief by continuing the proceedings as far as required by the objection. The proceedings shall be relegated to the state at which they were at the end of the court hearing. In the case of written proceedings, the end of the hearing shall be replaced by the point in time up to which documents may be submitted. § 343 of the Code of Civil Procedure shall apply as regards the judicial pronouncement.

(6) § 149 (1) sentence 2 of the Code of the Administrative Courts [Verwaltungsgerichtsordnung] shall apply mutatis mutandis.

 

§ 72
Inspection of Files

(1) The parties referred to in § 67 (1) no. 1 and 2 and (2) may inspect the court files and may obtain certified and other copies and excerpts at their own expense from the court clerk. § 299 (3) of the Code of Civil Procedure shall apply mutatis mutandis.

(2) The inspection of preparatory files, supplementary files, expert opinions and other information shall be allowed only with the consent of the authorities to whom the files belong or who have obtained the information. The cartel authority shall refuse to consent to an inspection of its records if this is necessary for important reasons, in particular to protect operating or business secrets. If inspection is refused or impermissible, the decision may be based on such records only insofar as their content formed part of the pleadings. The appellate court may, after hearing the person affected by such disclosure, order by decree the disclosure of facts or evidence, the confidentiality of which is demanded for important reasons, in particular to protect operating or business secrets, insofar as such facts or evidence are relevant for the decision, there is no other way to ascertain the facts and, considering all circumstances in the particular case, the significance of the matter in protecting competition outweighs the interests of the person affected in maintaining confidentiality. The decree shall contain a statement of reasons. In proceedings pursuant to sentence 4, the person affected need not be represented by a lawyer.

(3) The appellate court may permit the parties referred to in § 67 (1) no. 3 to inspect files to the same extent, having heard those to whom the files belong.

 

§ 73
Application of the Provisions of the

Courts Constitution Act and the Code of Civil Procedure

Unless otherwise provided for herein, the following provisions shall apply mutatis mutandis in proceedings before the appellate court:

1. the provisions in §§ 169 to 197 of the Courts Constitution Act [Gerichtsverfassungsgesetz] regarding admission of the public to proceedings, maintenance of order in court, the language to be used in court cases, judicial deliberation and voting;

2. the provisions of the Code of Civil Procedure regarding the exclusion or challenge of a judge, representation and assistance in court, service of process by the court, summons, dates of hearings and time limits, orders for the personal appearance of the parties, joining of several proceedings, taking of testimony of witnesses and experts, as well as other procedures for taking evidence, and reinstatement of prior conditions.

 

III. Appeal on Points of Law

 

§ 74
Leave to Appeal, Absolute Reasons for Appeal

(1) Appeals on points of law to the Federal Court of Justice [Bundesgerichtshof] from decrees issued by the Courts of Appeal shall be admissible if the Court of Appeal grants leave to appeal on points of law.

(2) Leave to appeal on points of law shall be granted if:

1. a legal issue of fundamental importance is to be decided, or

2. a decision by the Federal Court of Justice is necessary to develop the law or to ensure uniform court practice.

(3) The decision of the Court of Appeal shall state whether leave to appeal on points of law is granted or not. If leave to appeal is refused, the reasons shall be given.

(4) No leave to appeal on points of law against a decision of an appellate court shall be required if the appeal is based on, and complains of, one of the following procedural defects:

1. if the court having made the decision was not duly constituted,

2. if a judge participating in the decision was excluded by law from the exercise of judicial functions or was successfully challenged on grounds of prejudice,

3. if a party was denied its right to be heard,

4. if a party to the proceedings was not represented according to the provisions of the law, unless such party consented explicitly or implicitly to the conduct of the proceedings,

5. if the decision was made on the basis of a hearing at which the provisions regarding the admission of the public to the proceedings were violated, or

6. if the decision does not contain a statement of reasons.

 

§ 75
Appeal from Refusal to Grant Leave

(1) The refusal to grant leave to appeal on points of law may be challenged separately by way of an appeal from refusal to grant leave.

(2) The decision on the appeal from refusal to grant leave shall be made by the Federal Court of Justice by decree which shall contain a statement of reasons. The decree may be issued without a hearing.

(3) The appeal from refusal to grant leave shall be filed in writing with the Court of Appeal within one month. The time period shall begin upon service of the decision being appealed.

(4) § 64 (1) and (2), § 66 (3), (4) no. 1 and (5), §§ 67, 68, 72 and 73 no. 2 of this Act as well as §§ 192 to 197 of the Courts Constitution Act regarding the deliberation and voting of the court shall apply mutatis mutandis. The appellate court shall be competent to issue preliminary injunctions.

(5) If leave to appeal on points of law is refused, the decision of the Court of Appeal shall become final and binding upon service of the decree of the Federal Court of Justice. If leave to appeal on points of law is granted, the time period for filing the appeal shall begin upon service of the decree of the Federal Court of Justice.

 

§ 76
Right to Appeal, Formal Requirements and Time Limits

(1) The cartel authority as well as the parties to the appeal proceedings shall be entitled to file an appeal on points of law.

(2) The appeal on points of law may be based only on the contention that the decision rests upon a violation of the law; §§ 546, 547 of the Code of Civil Procedure shall apply mutatis mutandis. The appeal on points of law cannot be based upon the contention that the cartel authority erroneously, contrary to § 48, assumed it had jurisdiction.

(3) The appeal on points of law shall be filed in writing with the Court of Appeal within one month. The time period shall begin upon service of the decision being appealed.

(4) The Federal Court of Justice shall be bound by the findings of fact in the decision being appealed unless admissible and well founded reasons for an appeal on points of law have been put forth in respect of these findings.

(5) As for other matters, § 64 (1) and (2), § 66 (3), (4) no. 1 and (5), §§ 67 to 69, 71 to 73 shall apply mutatis mutandis to appeals on points of law. The appellate court shall be competent to issue preliminary injunctions.

 

IV. Common Provisions

 

§ 77
Capacity to Participate in the Proceedings

In addition to natural and legal persons, associations of persons without legal capacity shall have the capacity to participate in proceedings before the cartel authority, in appeal proceedings and in appeal proceedings on points of law.

 

§ 78
Apportionment and Taxation of Costs

In appeal proceedings and in appeal proceedings on points of law, the court may order that the costs necessary for the due pursuit of the matter shall be reimbursed, in whole or in part, by one of the parties if equity so requires. If a party caused costs to be incurred due to an unfounded appeal or by gross fault, the costs shall be imposed upon that party. As for other matters, the provisions of the Code of Civil Procedure regarding the taxation of costs and the enforcement of court decisions allocating costs shall apply mutatis mutandis.

 

§ 78a
Electronic Transmission of Documents

In appeal proceedings and in appeal proceedings on points of law, § 130a (1) and (3) as well as § 133 (1) sentence 2 of the Code of Civil Procedure shall apply mutatis mutandis, provided that the parties pursuant to § 67 may use electronic legal communication services (elektronischer Rechtsverkehr). The Federal Government and the Land governments shall determine, by ordinance, the time from which electronic documents may be submitted to the courts and the format suitable for the processing thereof. The Land governments may delegate this authority, by ordinance, to the Land judicial administrations. The permissibility of the electronic form may be restricted to individual courts or proceedings.

 

§ 79
Ordinances

The details of the proceedings before the cartel authority shall be determined by the Federal Government in ordinances [Rechtsverordnungen] requiring the approval of the Bundesrat [Federal Council].

 

§ 80
Chargeable Acts

(1) In proceedings before the cartel authority, costs (fees and expenses) shall be imposed to cover administrative effort. The following acts shall be subject to fees (chargeable acts):

1. notifications pursuant to § 39 (1);

2. official acts on the basis of §§ 26, 30 (3), §§ 32 to 32d – also in conjunction with §§ 50 to 50b –, §§ 36, 39, 40, 41, 42 and 60

3. the provision of certified copies from the files of the cartel authority.

Also charged as expenditures shall be the costs of publications, of public notices and of additional executed copies, copies and excerpts, as well as the contributions to be paid due to the analogous application of the Judicial Remuneration and Compensation Act [Justizvergütungs- und –entschädigungsgesetz]. The fee for the notification of a concentration pursuant to § 39 (1) shall be credited against the fee for the clearance or prohibition of a concentration pursuant to § 36 (1).

(2) The amount of the fees shall be determined according to the personnel and material expenses of the cartel authority, account being taken of the economic significance of the subject matter of the chargeable act. However, the fee rates shall not exceed:

1. EUR 50,000 in the cases of §§ 36, 39, 40, 41 (3) and (4) and § 42;

2. EUR 25,000 in the cases of §§ 32 and 32b (1), §§ 32d and 41 (2) sentences 1 and 2;

3. EUR 7,500 in the cases of § 32c;

4. EUR 5,000 in the cases of § 26 (1) and (2) and § 30 (3);

5. EUR 17.50 for the issue of certified copies (paragraph 1 no. 3);

6.

a) in the cases of § 40 (3a), also in conjunction with § 41 (2) sentence 3 and § 42 (2) sentence 2, the amount charged for the clearance, exemption or authorisation;

b) EUR 250 for decisions relating to agreements or decisions of the kind described in § 28 (1);

c) in the cases of § 26 (4), the amount for the decision pursuant to § 26 (1) no. 4;

d) in the cases of §§ 32a and 60, one fifth of the fee in the main proceedings.

If the personnel and material expenses of the cartel authority are unusually high in a particular case, taking into account the economic importance of the chargeable act concerned, the fee may be increased up to twice its amount. For reasons of equity, the fee determined according to sentences 1 to 3 may be reduced to a minimum of one tenth of its amount.

(3) As regards payment for several similar official acts or similar notifications by the same person liable to pay the fee, provision may be made for lump-sum fee rates which allow for the minor extent of administrative effort involved.

(4) Fees shall not be charged:

1. for oral and written information and suggestions;

2. if they would not have arisen had the matter been handled correctly;

3. in the cases of § 42 if the preceding decision of the Bundeskartellamt pursuant to § 36 (1) has been reversed.

(5) If an application is withdrawn before a decision is made thereon, one half of the fee shall be paid. The same shall apply if an application is withdrawn within three months from its receipt by the cartel authority.

(6) The person liable to pay the costs shall be:

1. in the cases of paragraph 1 sentence 2 no. 1: whoever has submitted a notification;

2. in the cases of paragraph 1 sentence 2 no. 2: whoever has, by making an application or a notification, caused the cartel authority to act, or the person against whom the cartel authority has issued a decision;

3. in the cases of paragraph 1 sentence 2 no. 3: whoever caused the copies to be made.

The person liable to pay the costs is also whoever, by declaration made before the cartel authority or communicated to it, assumed the obligation to pay the costs, or is liable by virtue of the law for the cost owed by another person. Several persons owing costs shall be jointly and severally liable.

(7) The claim to payment of fees shall become statute-barred four years after the assessment of the fees. The claim to reimbursement of expenditures shall become statute-barred four years after they have arisen.

(8) The Federal Government is authorised to regulate, by way of ordinances which require the approval of the Bundesrat, the fee rates and the collection of the fees from persons liable to pay fees under the provisions in paragraphs 1 to 6, as well as the reimbursement of expenditures for the publications referred to in paragraph 1 sentence 3. For this purpose, it may also make regulations which concern the exemption of legal persons under public law from costs, the statute of limitations, and the collection of costs.

(9) The Federal Government shall regulate, by way of ordinances requiring the approval of the Bundesrat, the details of reimbursement of the costs incurred in proceedings before the cartel authority according to the principles of § 78.

 

SECOND CHAPTER
Proceedings Concerning Administrative Fines

 

§ 81
Provisions Concerning Administrative Fines

(1) An administrative offence is committed by whoever violates the EC Treaty in the version published on 24 December 2002 (OJ EC C 325 p. 33), by intentionally or negligently

1. reaching an agreement, making a decision or concerting practices contrary to Article 81 (1) or

2. abusing a dominant position contrary to Article 82 sentence 1.

(2) An administrative offence is committed by whoever intentionally or negligently

1. violates a provision in §§ 1, 19 (1), § 20 (1), also in conjunction with (2) sentence 1, § 20 (3) sentence 1, also in conjunction with sentence 2, § 20 (4) sentence 1 or (6), § 21 (3) or (4), § 29 sentence 1 or § 41 (1) sentence 1 concerning the prohibition of an agreement referred to therein, of a decision referred to therein, of a concerted practice, of an abuse of a dominant position, a market position or of superior market power, of an unfair hindrance or differential treatment, of the refusal to admit an undertaking, of the exercise of coercion, the infliction of an economic disadvantage or the implementation of a concentration,

2. acts contrary to an enforceable order issued pursuant to

a) § 30 (3), § 32 (1), § 32a (1), § 32b (1) sentence 1 or § 41 (4) no. 2, also in conjunction with § 40 (3a) sentence 2, also in conjunction with § 41 (2) sentence 3 or § 42 (2) sentence 2, or § 60 or

b) § 39 (5),

3. contrary to § 39 (1), fails to notify a concentration correctly or completely,

4. contrary to § 39 (6), fails to file a notification or to file a notification correctly or completely or in time,

5. acts contrary to an enforceable obligation pursuant to § 40 (3) sentence 1 or § 42 (2) sentence 1, or

6. contrary to § 59 (2), fails to provide information or to provide information correctly, completely or in time, fails to deliver documents or to surrender documents completely or in time, fails to present business documents for the purpose of inspection and examination or to present them completely or in time, or does not tolerate the examination of such business documents or access to offices and business premises.

(3) An administrative offence is committed by whoever

1. contrary to § 21 (1), requests to refuse to supply or purchase,

2. contrary to § 21 (2), threatens or causes a disadvantage or promises or grants an advantage, or

3. contrary to § 24 (4) sentence 3 or § 39 (3) sentence 5, gives or uses information.

(4) In the cases of paragraph 1, paragraph 2 no. 1, no. 2 lit. a) and no. 5 and paragraph 3 the administrative offence may be punished by a fine of up to EUR 1 million. Beyond sentence 1 a higher fine may be imposed on an undertaking or an association of undertakings; the fine must not exceed 10 percent of the total turnover of such undertaking or association of undertakings achieved in the business year preceding the decision of the authority. Calculation of the total turnover must be based on the turnover achieved worldwide by all natural and legal persons operating as a single economic entity. The amount of the total turnover may be estimated. In all other cases, the administrative offence may be punished by a fine of up to EUR 100,000. In fixing the amount of the fine, regard shall be had both to the gravity and to the duration of the infringement.

(5) § 17 (4) of the Administrative Offences Act shall be applied to the assessment of the fine, with the proviso that the economic benefit which was derived from the administrative offence may be skimmed off by the fine pursuant to paragraph 4. If the fine is imposed for reasons of punishment only, this must be taken into account in fixing the amount of the fine.

(6) Interest is payable on fines imposed on legal persons and associations of persons in an order imposing an administrative fine; fines bear interest as of two weeks after service of the order imposing an administrative fine. § 288 (1) sentence 2 and § 289 sentence 1 of the Civil Code shall apply mutatis mutandis.

(7) The Bundeskartellamt may lay down general administrative principles on the exercise of its discretionary powers in assessing the fine, in particular in setting the amount of the fine, and also with regard to its cooperation with foreign competition authorities.

(8) Proceedings for administrative offences as defined in paragraph 1 to 3 shall become statute-barred in accordance with the provisions of the Administrative Offences Act also if the offence is committed by the dissemination of printed material. Administrative offences as defined in paragraph 1, paragraph 2 no. 1 and paragraph 3 shall become statue-barred after five years.

(9) Where the Commission of the European Community or the competition authorities of other Member States of the European Community, acting ex officio or upon a complaint, are engaged in proceedings for an infringement of Article 81 or 82 of the EC Treaty against the same agreement, the same decision or the same practice as the cartel authority, the limitation period for administrative offences pursuant to paragraph 1 shall be interrupted by all acts of these competition authorities corresponding to those under § 33 (1) of the Administrative Offences Act.

(10) The administrative authority within the meaning of § 36 (1) no. 1 of the Administrative Offences Act shall be the authority which is competent pursuant to § 48, also in conjunction with § 49 (3) and (4), or § 50.

 

§ 82
Jurisdiction in Proceedings to Assess an Administrative Fine Against a Legal Person or Association of Persons

The cartel authority shall be exclusively competent in proceedings to assess an administrative fine against a legal person or association of persons (§ 30 of the Administrative Offences Act) in cases arising from:

1. a criminal offence which also fulfils the elements of § 81 (1), (2) no. 1 and (3), or

2. an intentional or negligent administrative offence pursuant to § 130 of the Administrative Offences Act, where a punishable breach of duty also fulfils the elements of § 81 (1), (2) no. 1 and (3).

This shall not apply if the proceedings pursuant to § 30 of the Administrative Offences Act are referred by the authority to the public prosecutor.

 

§ 82a
Competences and Jurisdiction in Legal Proceedings Concerning Administrative Fines

(1) In legal proceedings concerning administrative fines, the representative of the cartel authority may be allowed to address questions to parties, witnesses and experts.

(2) If the Bundeskartellamt has acted as the administrative authority in the preliminary proceedings, the enforcement of the administrative fine and of the amount of money, the forfeit of which has been ordered, shall be made by the Bundeskartellamt as the law enforcement authority, pursuant to the provisions on the enforcement of administrative fines, on the basis of a certified copy of the operative provisions of the judgment to be issued by the clerk of the court and endowed with the declaration of enforceability. The administrative fines and amounts of money, the forfeit of which has been ordered, shall accrue to the Federal Cash Office [Bundeskasse] which also bears the costs imposed on the Treasury.

 

§ 83
Jurisdiction of the Court of Appeal in Judicial Proceedings

(1) The Court of Appeal in whose district the competent cartel authority has its seat shall decide in judicial proceedings concerning an administrative offence pursuant to § 81; it shall also decide on an application for judicial review (§ 62 of the Administrative Offences Act) in the cases of § 52 (2) sentence 3 and § 69 (1) sentence 2 of the Administrative Offences Act. § 140 (1) no. 1 of the Code of Criminal Procedure in conjunction with § 46 (1) of the Administrative Offences Act shall not be applicable.

(2) The decisions of the Court of Appeal shall be made by three members including the presiding judge.

 

§ 84
Appeal to the Federal Court of Justice on Points of Law

The Federal Court of Justice shall decide on appeals on points of law (§ 79 of the Administrative Offences Act). If the decision being appealed is reversed without a decision being taken on the merits of the case, the Federal Court of Justice shall refer the case back to the Court of Appeal whose decision has been reversed.

 

§ 85
Reopening of Proceedings against an Administrative Fine

Reopening proceedings on a decision of the cartel authority imposing an administrative fine (§ 85 (4) of the Administrative Offences Act), shall be decided by the court having jurisdiction pursuant to § 83.

 

§ 86
Court Decisions Concerning Enforcement

The court decisions which become necessary for enforcement (§ 104 of the Administrative Offences Act) shall be made by the court having jurisdiction pursuant to § 83.

 

THIRD CHAPTER
Enforcement

 

§ 86a
Enforcement

The cartel authority may enforce its orders pursuant to the provisions applying to the enforcement of administrative measures. The amount of the penalty payment shall be at least EUR 1,000 and shall not exceed EUR 10 million.

 

FOURTH CHAPTER
Civil Actions

 

§ 87
Exclusive Jurisdiction of the District Courts

(1) Regardless of the value of the matter in dispute, the District Courts [Landgerichte] shall have exclusive jurisdiction in civil actions concerning the application of this Act, of Articles 81 or 82 of the EC Treaty or of Articles 53 or 54 of the Convention on the European Economic Area. Sentence 1 shall apply also if the decision in a civil action depends, in whole or in part, on a decision to be taken pursuant to this Act, or on the applicability of Articles 81 or 82 of the EC Treaty or of Articles 53 or 54 of the Convention on the European Economic Area. Sentence 1 shall not apply to civil actions arising from the legal relations mentioned in § 69 of the Fifth Book of the Code of Social Law [Sozialgesetzbuch], also as far as rights of third parties are affected hereby.

(2) Such actions shall be regarded as commercial matters within the meaning of §§ 93 to 114 of the Courts Constitution Act.

 

§ 88
Joining of Actions

Another cause of action may be joined with one arising under § 87 (1) if the former has a legal or direct economic connection with the claim to be asserted before the court having jurisdiction pursuant to § 87; this shall apply also if another court has exclusive jurisdiction over the other cause of action.

 

§ 89
Jurisdiction of one District Court for Several Court Districts

(1) The Land governments are authorised to refer, by way of ordinances, civil actions for which the District Courts have exclusive jurisdiction pursuant to § 87 to one District Court for the districts of several District Courts if such centralisation serves the administration of justice in cartel matters, in particular to ensure the uniformity of court practice. The Land governments may delegate this authority to their judicial administrations.

(2) The jurisdiction of one District Court for several districts or for the entire territory of several Länder may be established by treaties between the Länder.

(3) The parties may be represented before the courts referred to in paragraphs 1 and 2 also by lawyers admitted to practice before the court which in the absence of paragraphs 1 and 2 would have jurisdiction over the legal action.

 

§ 89a
Adjustment of the Value in Dispute

(1) If, within a legal action in which a claim pursuant to §§ 33 or 34a is asserted, a party substantiates by prima facie evidence that its economic situation would be seriously jeopardised if it had to bear the costs of litigation calculated on the basis of the full value in dispute, the court may, upon such party’s request, order the obligation of this party to pay the court fees to be assessed on the basis of a part of the value in dispute which is adjusted to its economic situation. The court may make its order contingent on the party substantiating by prima facie evidence that the costs of litigation to be borne by it are not directly or indirectly taken over by a third party. The order shall entail that the benefiting party also has to pay its lawyer’s fees only according to the adjusted part of the value in dispute. Where costs of litigation are imposed upon or taken over by it, it shall reimburse the opposing party for paid court fees and the fees of its lawyer only on a pro-rata basis. Where the extra-judicial costs are imposed upon or taken over by the opposing party, the lawyer of the benefiting party may recover his fees from the opposing party according to the value in dispute applying to the opposing party.

(2) The request pursuant to paragraph 1 may be declared for the record of the registry of the court. It shall be made prior to the trial of the case on its merits. Thereafter the request shall only be admissible if the assumed or assessed value in dispute is subsequently raised by the court. The opposing party shall be heard prior to the decision on the request.

 

FIFTH CHAPTER
Common Provisions

 

§ 90
Information of and Participation by the Cartel Authorities

(1) The Bundeskartellamt shall be informed by the court of all legal actions pursuant to § 87 (1). The court shall, upon request, transmit to the Bundeskartellamt copies of all briefs, records, orders and decisions. Sentences 1 and 2 shall apply mutatis mutandis in other legal actions which concern the application of Articles 81 and 82 of the EC Treaty.

(2) The President of the Bundeskartellamt may, if he considers it to be appropriate to protect the public interest, appoint from among the members of the Bundeskartellamt a representative authorised to submit written statements to the court, to point out facts and evidence, to attend hearings, to present arguments there, and to address questions to parties, witnesses and experts. Written statements made by the representative shall be communicated to the parties by the court.

(3) If the significance of the legal action does not extend beyond the territory of a Land, the supreme Land authority shall take the place of the Bundeskartellamt for the purposes of paragraph 1 sentence 2 and paragraph 2.

(4) Paragraphs 1 and 2 shall apply mutatis mutandis to legal actions which have as their subject matter the enforcement of a price set pursuant to § 30 against a purchaser bound thereby or against another undertaking.

 

§ 90a
Cooperation of the Courts with the Commission of the European Community and the Cartel Authorities

(1) In all judicial proceedings where Article 81 or 82 of the EC Treaty are applied the court shall, without undue delay after serving the decision on the parties, forward a duplicate of any decision to the Commission of the European Community via the Bundeskartellamt. The Bundeskartellamt may transmit to the Commission of the European Community the documents which it has obtained pursuant to § 90 (1) sentence 2.

(2) In proceedings pursuant to paragraph 1 the Commission of the European Community may, acting on its own initiative, transmit written observations to the court. In case of a request pursuant to Art. 15 (3) sentence 5 of Council Regulation (EC) No 1/2003 the court shall provide the Commission of the European Community with all documents necessary for the assessment of the case, including copies of all briefs and duplicates of all records, orders and decisions. § 4b (5) and (6) of the Federal Data Protection Act [Bundesdatenschutzgesetz] shall apply mutatis mutandis. The court shall provide the Bundeskartellamt and the parties with a copy of the written observations of the Commission of the European Community made pursuant to Art. 15 (3) sentence 3 of Council Regulation (EC) No 1/2003. The Commission of the European Community may also submit oral observations in the hearing.

(3) In proceedings pursuant to paragraph 1 the court may ask the Commission of the European Community to transmit information in its possession or for its observations on questions concerning the application of Article 81 or 82 of the EC Treaty. The court shall inform the parties about a request made pursuant to sentence 1, and shall provide them as well as the Bundeskartellamt with a copy of the reply of the Commission of the European Community.

(4) In the cases of paragraphs 2 and 3 the contacts between the court and the Commission of the European Community may also occur via the Bundeskartellamt.

 

§ 91
Cartel Division of the Court of Appeal

The Courts of Appeal shall establish cartel divisions. They shall decide on legal matters assigned to them pursuant to § 57 (2) sentence 2, § 63 (4), §§ 83, 85 and 86, and on appeals from final judgments and other decisions in civil actions pursuant to § 87 (1).

 

§ 92
Jurisdiction of a Court of Appeal or of the Supreme Court of a Land for Several Court Districts in Administrative Matters and Proceedings Concerning Administrative Fines

(1) Where several Courts of Appeal exist in a Land, the legal matters for which the Court of Appeal has exclusive jurisdiction pursuant to § 57 (2) sentence 2, § 63 (4), §§ 83, 85 and 86, may be assigned by the Land governments by way of ordinance to one or several of the Courts of Appeal or to the Supreme Court of a Land [Oberstes Landesgericht], if such centralisation serves the administration of justice in cartel matters, in particular to ensure the uniformity of court practice. The Land governments may delegate this authority to their judicial administrations.

(2) The jurisdiction of one Court of Appeal or of the Supreme Court of a Land for individual districts or for the entire territory of several Länder may be established by treaty between the Länder.

 

§ 93
Jurisdiction over Appeals

§ 92 (1) and (2) shall apply mutatis mutandis to decisions on appeals from final judgments and from other decisions in civil actions pursuant to § 87 (1).

 

§ 94
Cartel Division of the Federal Court of Justice

(1) The Federal Court of Justice shall establish a cartel division; it shall decide on the following judicial remedies:

1. in administrative matters, on appeals on points of law from decisions of the Courts of Appeal (§§ 74, 76) and on appeals from the refusal to grant leave to appeal (§ 75);

2. in proceedings concerning administrative fines, on appeals on points of law from decisions of the Courts of Appeal (§ 84);

3. in civil actions pursuant to § 87 (1):

a) on appeals on points of law from final judgments of the Courts of Appeal including appeals from the refusal to grant leave to appeal,

b) on reviews from final judgments of the District Courts,

c) on appeals from decisions of the Courts of Appeal in the cases of § 574 (1) of the Code of Civil Procedure.

(2) In proceedings concerning administrative fines, the cartel division shall constitute a division for criminal matters within the meaning of § 132 of the Courts Constitution Act, in all other cases it shall constitute a division for civil matters.

 

§ 95
Exclusive Jurisdiction

The jurisdiction of the courts which are competent under this Act shall be exclusive.

 

§ 96
[Abolished]

 

PART IV
Award of Public Contracts

 

FIRST CHAPTER
Award Procedures

 

§ 97
General Principles

(1) Contracting entities shall procure goods, works and services in accordance with the following provisions through competition and by way of transparent award procedures.

(2) The participants in an award procedure shall be treated equally unless discrimination is expressly required or allowed by this Act.

(3) The interests of small and medium-sized undertakings shall primarily be taken into account in an award procedure. Contracts shall be subdivided into partial lots and awarded separately according to the type or area of specialisation (trade-specific lots). Several partial or trade-specific lots may be awarded collectively if economic or technical reasons require this. If an undertaking, which is not a public contracting entity, is entrusted with the realisation or execution of a public assignment, it shall be obliged by the contracting entity, so far as it subcontracts to third parties, to proceed according to sentences 1 to 3.

(4) Contracts shall be awarded to skilled, efficient, law-abiding and reliable undertakings. Contractors may be expected to meet other or further requirements involving social, environmental or innovative aspects if these have a direct relation to the subject matter of the contract and arise from the description of the service to be rendered. Contractors may be expected to meet other or further requirements only if federal law or the laws of a Land provide for this.

(4a) Contracting entities can implement or allow the use of pre-qualification systems to verify the suitability of undertakings.

(5) The economically most advantageous tender shall be accepted.

(6) The Federal Government is empowered to more precisely define, by ordinance with the approval of the Bundesrat, the procedure to be followed in awarding contracts, in particular concerning the notice, the course and the categories of awards, the selection and examination of undertakings and tenders, the conclusion of the contract as well as other issues relating to the award procedure.

(7) Undertakings have a right to the provisions concerning the award procedure being complied with by the contracting entity.

 

§ 98
Contracting Entities

Contracting entities within the meaning of this Part are:

1. regional or local authorities as well as their special funds,

2. other legal persons under public or private law which were established for the specific purpose of meeting non-commercial needs in the general interest, if they are for the most part financed individually or jointly through a participation or in some other way by entities within the meaning of no. 1 or 3, or if such entities supervise their management or have appointed more than half of the members of one of their management or supervisory boards. The same shall apply if the entity which individually or together with others provides, for the most part, such financing, or has appointed the majority of the members of a management or supervisory board, falls under sentence 1,

3. associations whose members fall under no. 1 or 2,

4. natural or legal persons under private law which operate in the fields of drinking water, energy supply or transport, if these activities are exercised on the basis of special or exclusive rights granted by a competent authority, or if contracting entities falling under no. 1 to 3 can individually or jointly exercise a controlling influence upon these persons; special or exclusive rights are rights, the effect of which is to limit the exercise of these activities to one or more undertakings and which substantially affect the ability of other undertakings to carry out such activity. Activities in the fields of drinking water, energy supply or transport shall be services as listed in the annex.

5. natural or legal persons under private law as well as legal persons under public law, so far as they do not fall under no. 2, in cases where they receive funds for civil engineering projects, for building hospitals, sports, leisure or recreational facilities, school, university or administrative buildings, or for related services and design contests from entities falling under no. 1 to 3, which are used to finance more than 50% of these projects,

6. natural or legal persons under private law who have concluded a works contract with entities falling under no. 1 to 3, with respect to contracts awarded to third parties (works concession).

 

§ 99
Public Contracts

(1) Public contracts are contracts for pecuniary interest concluded between public contracting entities and undertakings for the procurement of services whose subject matter is supplies, works or services, works concessions and design contests intended to lead to service contracts.

(2) Supply contracts are contracts for the procurement of goods involving in particular a purchase or hire purchase or leasing, or a lease with or without a purchase option. The contracts may also include ancillary services.

(3) Works contracts are contracts either for the execution or the simultaneous design and execution of a work project or a work for the public contracting entity which is the result of civil engineering or building construction work and is to fulfil a commercial or technical function, or for the execution of a work by a third party which is for the direct economic benefit of the contracting entity, corresponding to the requirements specified by the contracting entity.

(4) Service contracts are contracts for the performance of services which are not covered by paragraph 2 or paragraph 3.

(5) Design contests within the meaning of this Part are only such award procedures which are intended to enable the contracting entity to acquire a plan on the basis of a comparative evaluation by a jury with or without the award of prizes.

(6) A works concession is a contract for the execution of a works contract, whereby consideration for the building work consists, instead of remuneration, in the limited right to use the installation, if appropriate, plus the payment of a fee.

(7) Public contracts, whose subject matter is both the purchase of goods and the procurement of services, shall be deemed service contracts if the value of the services performed exceeds the value of the goods supplied. Public contracts which in addition to services involve the execution of works which, in relation to the principal subject matter, are ancillary services shall be deemed service contracts.

(8) In the case of contracts for the execution of several activities, the provisions shall apply to the activity which constitutes the principal subject matter. If, in the case of contracts for the exercise of activities in the fields of drinking water, energy supply or transport or in the area of the contracting entities under the Federal Mining Act [Bundesberggesetz] and in the case of activities of contracting entities in accordance with § 98 no. 1 to 3, it cannot be determined which activity constitutes the principal subject matter, the contract shall be awarded according to the provisions applying to contracting entities under § 98 no. 1 to 3. If one of the activities, the exercise of which forms the subject matter of the contract , concerns both an activity in the fields of drinking water, energy supply or transport or in the area of the contracting parties under the Federal Mining Act, as well as an activity which does not fall into the areas of contracting entities under § 98 no. 1 to 3, and it cannot be determined which activity constitutes the principal subject matter, the contract shall be awarded according to those provisions applying to contracting entities operating in the fields of drinking water, energy supply, transport or the Federal Mining Act.

 

§ 100
Scope of Application

(1) This Part shall apply only to contracts which reach or exceed the contract values fixed by ordinance pursuant to § 127 (thresholds).

(2) This Part shall not apply to employment contracts and to contracts:

a) which are awarded in pursuance of an international agreement relating to the stationing of troops and which are subject to special procedural rules;

b) which are awarded in pursuance of an international agreement concluded between the Federal Republic of Germany and one or more countries which are not parties to the Treaty on the European Economic Area and which cover a project to be jointly implemented and financed by the signatory states which are subject to different procedural rules;

c) which are awarded pursuant to the particular procedure of an international organisation;

d) which are declared secret in accordance with the legal and administrative provisions in the Federal Republic of Germany, or whose execution must be accompanied by special security measures in accordance with these provisions, or when the protection of the basic interests of state security so requires;

aa) which are declared secret in accordance with the legal and administrative provisions in the Federal Republic of Germany,

bb) whose execution, in accordance with these provisions, must be accompanied by special security measures,

cc) which require the deployment of the armed forces or the implementation of counter-terrorism measures or the consideration of essential security interests in the procurement of information technology or telecommunications systems or

dd) when the protection of other essential interests of state security so requires;

e) which are covered by the scope of application of Article 296 (1) (b) of the EC Treaty;

f) which have as their object, in the case of activities in the supply of drinking water, the procurement of water, or, in the case of activities in the supply of energy, the procurement of energy or fuels for the production of energy;

g) which are awarded to a person who is a contracting entity within the meaning of § 98 no. 1, 2 or 3 and has an exclusive right to render the performance by virtue of a law or ordinance;

h) for the acquisition or rental, by whatever financial means, of land, existing buildings, or other immovable property or concerning rights thereto;

i) which are awarded by contracting entities within the meaning of § 98 no. 4 if they serve purposes other than sectoral activities;

j) which have as their object the purchase, development, production or co-production of programmes which are intended for broadcast via radio or television channels as well as contracts for the broadcast of programmes;

k) whose main purpose is to enable the contracting entity to provide or operate public telecommunication networks or to provide one or several telecommunication services for the public;

l) for arbitration and conciliation services;

m) for financial services in connection with the issue, sale, purchase or transfer of securities or other financial instruments, in particular transactions by the contracting entities to raise money or capital, as well as central bank services;

n) for research and development services other than those where the benefits accrue exclusively to the contracting entity for its use in the conduct of its own affairs on condition that the service provided is wholly remunerated by the contracting entity.

o) of

aa) contracting entities which are active in the fields of drinking water, energy supply or transport, awarded to an undertaking which is affiliated with this contracting entity or

bb) a joint venture, formed exclusively by a number of contracting entities active in the fields of drinking water, energy supply or transport for the purpose of carrying out these activities, awarded to an undertaking which is affiliated with one of these contracting entities,

provided that at least 80 % of the average turnover achieved by this affiliated undertaking in the European Union in the preceding three years in the respective supply, works or services sector derives from the provision of such supply services or services to the contracting entity with which it is affiliated; this shall also apply if the undertaking has been in existence for less than three years if it is expected to achieve at least 80 % in the first three years of its existence; if the same or similar supplies, works or services are provided by more than one undertaking affiliated with the contracting entity, the percentage figure shall be calculated taking into account the total turnover achieved by these affiliated undertakings from the provision of the supplies or services; § 36 no. 2 and 3 shall apply mutatis mutandis;

p) which

aa) a joint venture, formed exclusively by a number of contracting entities active in the fields of drinking water, energy supply or transport for the purpose of carrying out these activities, awards to one of these contracting entities or

bb) a contracting entity active in the fields of drinking water, energy supply or transport, awards to a joint venture within the meaning of the double letters aa) of which it forms a part, provided that the joint venture has been set up to carry out the activity concerned over a period of at least three years, and that the instrument setting up the joint venture stipulates that the contracting entities which form it will be part thereof for at least the same period;

q) which are awarded for carrying out activities in the fields of drinking water, energy supply or transport outside the territory of the European Union, where this does not involve the physical use of a network or facility within the Community;

r) which are awarded by contracting entities active in the fields of drinking water, energy supply or transport to third parties for the purpose of resale or lease, provided that the contracting entity has no special or exclusive right to sell or lease the subject of such contracts and that other undertakings are free to sell or lease these products under the same conditions as the respective contracting entity;

s) of contracting entities active in the fields of drinking water, energy supply or transport, which have as their object works concessions for carrying out these activities;

t) for the purpose of carrying out an activity in the fields of drinking water, energy supply or transport, if the European Commission, in accordance with Article 30 of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors, has established that this activity in Germany is directly exposed to competition on markets to which access is not restricted, and this has been published by the Federal Ministry of Economics and Technology in the Federal Gazette.

 

§ 101
Categories of Awards

(1) Public supply, works and service contracts shall be awarded through open procedures, restricted procedures, negotiated procedures or in competitive dialogue.

(2) Open procedures are procedures whereby an unlimited number of undertakings is publicly invited to submit a tender.

(3) Restricted procedures are procedures whereby a public invitation to participate is made and a limited number of undertakings from among the candidates is invited to submit a tender.

(4) Competitive dialogue is a procedure for the award of particularly complex contracts by public contracting entities in accordance with § 98 no. 1 to 3, so far as they are not active in the fields of drinking water, energy supply or transport, and § 98 no. 5. In this procedure an invitation to participate is made and selected undertakings are invited to negotiate all the details of the contract.

(5) Competitive dialogue is a procedure for the award of particularly complex contracts by public contracting entities. In this procedure an invitation to participate is made and selected undertakings are invited to negotiate all the details of the contract.

(6) An electronic auction serves to determine electronically the most economically advantageous tender. A dynamic electronic procedure is an open time-limited and completely electronic award procedure for the procurement of services which are customary on the market, where the specifications generally available on the market meet the requirements of the contracting entity.

(7) Public contracting entities shall apply the open procedure unless otherwise allowed by this Act. Contracting entities active in the fields of drinking water, energy supply or transport may freely choose between open, restricted and negotiated procedures.

 

§ 101a
Information and Standstill Obligation

(1) The contracting entity shall inform the unsuccessful tenderers in writing and without undue delay of the name of the successful undertaking, the reasons for the rejection of their tenders and of the earliest date of the conclusion of the contract. This shall also apply to candidates who were not informed about the rejection of their tenders before the notification of the decision on the award was sent to the successful tenderers. A contract may only be concluded at the earliest 15 calendar days after this information, pursuant to sentences 1 and 2, has been sent. If the information is sent by fax or electronically, the standstill period shall be reduced to ten calendar days. The standstill period shall begin on the day after which the contracting entity despatches the information; the date of receipt by the tenderer and candidate in question shall be irrelevant.

(2) The obligation to inform the tendering parties shall not apply in cases in which negotiation procedures are justified without previous notification on grounds of extreme urgency.

 

§ 101b
Ineffectiveness

(1) A contract shall be deemed ineffective ab initio if the contracting entity

1. has violated § 101a or

2. has awarded a public contract directly to an undertaking without inviting other undertakings to participate in the award procedure and without this being expressly permissible in accordance with the law

and this violation has been established in review proceedings in accordance with paragraph 2.

(2) Ineffectiveness pursuant to paragraph 1 can only be established if this is claimed in review proceedings within 30 calendar days after knowledge of the infringement, however at the latest six months after conclusion of the contract. If the contracting entity has published the award of the contract in the Official Journal of the European Union, the time limit for claiming ineffectiveness shall end 30 calendar days after publication of the notice of the award in the Official Journal of the European Union.

 

SECOND CHAPTER
Review Procedures

 

I. Reviewing Authorities

 

§ 102
Principle

Without prejudice to review by the supervisory authorities, any award of public contracts shall be subject to review by the public procurement tribunals.

 

§ 103
(abolished)

 

§ 104
Public Procurement Tribunals

(1) For contracts attributable to the Federation, the federal public procurement tribunals shall review the awarding of public contracts, and the Land public procurement tribunals for contracts attributable to the Länder.

(2) Rights under § 97 (7) as well as other claims against contracting entities for the undertaking or omission of an act in award procedures may only be asserted before the public procurement tribunals and the appellate court.

(3) The jurisdiction of the civil courts over damage claims and the powers of the competition authorities to prosecute infringements, especially of §§ 19 and 20, shall remain unaffected.

 

§ 105
Composition, Independence

(1) The public procurement tribunals shall exercise their functions independently and on their own responsibility within the limits of the law.

(2) The public procurement tribunals shall take their decisions through a chairman and two associate members of which one shall serve in an honorary capacity. The chairman and the full-time associate member shall be civil servants appointed for life with the qualification to serve in the higher administrative service, or comparably expert employees. Either the chairman or the full-time associate member shall be qualified to serve as a judge; generally this should be the chairman. The associate members should have in-depth knowledge of the practice of awarding public contracts, and honorary associate members should also have several years of practical experience in the field of the awarding of public contracts.

(3) The tribunal may assign the case to the chairman or to the full-time associate member without a hearing by unappealable decision, for him to decide alone. Such an assignment shall be possible only if the case involves no major difficulties as to the facts or the legal issues, and the decision will not be of fundamental importance.

(4) The members of the tribunal shall be appointed for a term of office of five years. They take their decisions independently and are bound only by law.

 

§ 106
Establishment, Organisation

(1) The Federation shall establish the necessary number of public procurement tribunals at the Bundeskartellamt. The establishment and composition of the public procurement tribunals as well as the allocation of duties shall be determined by the President of the Bundeskartellamt. Honorary associate members and their substitute members shall be appointed by him on a proposal by the central organisations of the chambers under public law. The President of the Bundeskartellamt shall issue rules of procedure, after obtaining approval from the Federal Ministry of Economics and Technology, and publish these in the Federal Gazette.

(2) The establishment, organisation and composition of the authorities (reviewing authorities) of the Länder mentioned in this Chapter shall be determined by the authorities competent under the laws of the Länder or, in the absence of any such determination, by the Land government, which may delegate this power. The Länder may establish joint reviewing authorities.

 

§ 106a
Delimitation of Competence of the Public Procurement Tribunals

(1) The federal public procurement tribunal shall be responsible for reviewing the procedures for the award of public contracts

1. of the Federation;

2. of contracting entities within the meaning of § 98 (2) so far as the Federation for the most part manages the participation, or has otherwise predominantly provided means of financing or supervises its management or has appointed the majority of the members of the management or supervisory board, unless the undertakings which are part of the contracting entity have agreed that another public procurement tribunal shall be competent;

3. of contracting entities within the meaning of § 98 (4) so far as the Federation exercises a controlling influence on them; a controlling influence exists if the Federation directly or indirectly owns the majority of the subscribed capital of the contracting entity or holds the majority of the voting rights attached to the shares of the contracting entity or can appoint more than half of the members of the administrative, management or supervisory board of the contracting entity;

4. of contracting entities within the meaning of § 98 (5) so far as the Federation has for the most part approved the financing;

5. of contracting entities within the meaning of § 98 (6) so far as the contracting authority within the meaning of § 98 no. 1 to 3 is attributable to the Federation;

6. which are performed for the Federation by way of an official delegation of powers.

(2) If the award procedure is carried out for the Federation by a Land as the delegated authority, the public procurement tribunal of the Land shall be the competent authority. If, in application of paragraph 1, no. 2 to 6 a contracting entity is attributable to a Land, the public procurement tribunal of the respective Land shall be the competent authority.

(3) In all other cases the competence of the public procurement tribunals shall be determined according to the seat of the contracting entity. In the case of procurements which involve more than one Land, the contracting entities shall name only one competent public procurement tribunal in the publication of the contract notice.

 

II. Proceedings before the Public Procurement Tribunal

 

§ 107
Initiation of the Proceedings, Application

(1) The public procurement tribunal shall initiate review proceedings only upon application.

(2) Every undertaking which has an interest in the contract and claims that its rights under § 97 (7) were violated by non-compliance with the provisions governing the awarding of public contracts has the right to file an application. In doing so, it must be shown that the undertaking has suffered a loss, or may be about to suffer a loss, in consequence of the alleged violation of provisions governing the awarding of public contracts.

(3) The application is inadmissible if

1. the applicant became aware of the violation of provisions governing the awarding of public contracts during the award procedure and did not object to the contracting entity without undue delay.

2. violations of provisions governing the awarding of public contracts which become apparent from the tender notice are not notified to the contracting entity by the end of the period specified in the notice for the submission of a tender or application.

3. violations of provisions governing the awarding of public contracts which only become apparent from the award documents are not notified to the contracting entity by the end of the period specified in the notice for the submission of a tender or application.

4. more than 15 calendar days have expired since receipt of notification from the contracting entity that it is unwilling to redress the complaint.

Sentence 1 shall not apply to an application under § 101b (1) no. 2 to have the

award contract declared ineffective. § 101a (1) sentence 2 shall remain unaffected.

 

§ 108
Form

(1) The application shall be submitted in writing to the public procurement tribunal and reasons shall be given without undue delay. It should state a certain request. An applicant without a domicile or habitual residence, seat or headquarters within the scope of application of this Act shall appoint an authorised receiving agent within the scope of application of this Act.

(2) The reasons shall designate the respondent, contain a description of the alleged violation of rights with a description of the facts as well as the designation of the available evidence, and show that an objection was made to the contracting entity; it should name the other parties, if known.

 

§ 109
Parties to the Proceedings, Admission to the Proceedings

The parties to the proceedings are the applicant, the contracting entity, and the undertakings whose interests are severely affected by the decision and which are therefore admitted by the public procurement tribunal to the proceedings. The decision to admit a party to the proceedings shall be incontestable.

 

§ 110
Investigation Principle

(1) The public procurement tribunal shall, acting on its own initiative, investigate the facts. In doing so, it may limit itself to the facts presented by the parties or those it can be reasonably expected to know. The public procurement tribunal shall not be obliged to extensively review the legitimacy of the application for review. In its entire activities, it shall take care not to unduly impede the course of the award procedure.

(2) The public procurement tribunal shall review the application for evident inadmissibility or unfoundedness. In doing so, it shall also consider a written statement lodged by the contracting entity as a precautionary measure (protective writ). Unless the application is clearly inadmissible or unfounded, the public procurement tribunal shall serve a copy thereof upon the contracting entity and request from the contracting entity the files which document the award procedure (award files). The contracting entity shall immediately make the award files available to the tribunal. §§ 57 to 59 (1) to (5) and § 61 shall apply mutatis mutandis.

 

§ 111
Inspection of Files

(1) The parties may inspect the files at the public procurement tribunal and may obtain certified and other copies and excerpts from the clerk’s office at their own expense.

(2) The public procurement tribunal shall refuse the inspection of documents where this is necessary for important reasons, in particular for the protection of secrets or to protect operating or business secrets.

(3) Every party shall indicate the secrets named in paragraph 2 when sending its files or statements, and shall mark them in the documents. If this is not done, the public procurement tribunal may assume that the party consents to the inspection.

(4) Refusal to allow an inspection of the files may be challenged only in connection with an immediate complaint in the main issue.

 

§ 112
Hearing

(1) The public procurement tribunal shall decide on the basis of a hearing which should be limited to one date. All parties shall have an opportunity to comment. With the consent of the parties or in the case of the inadmissibility or clear unfoundedness of the application, a decision may be taken on the basis of the documents.

(2) The case may be discussed and decided also if the parties do not appear or are not duly represented at the hearing.

 

§ 113
Expedition

(1) The public procurement tribunal shall take its decision and give reasons in writing within a period of five weeks of receipt of the application. In the case of particular difficulties regarding the facts or the law, the chairman may in exceptional cases by statement to the parties extend this period by the required time. The extended period shall not exceed two weeks. The chairman shall give reasons in writing for this order.

(2) The parties shall co-operate in clearing up the facts in a manner appropriate to a course of action designed to further and quickly conclude the proceedings. Time limits may be set for the parties, after the expiry of which further arguments may be disregarded.

 

§ 114
Decision of the Public Procurement Tribunal

(1) The public procurement tribunal shall decide whether the applicant’s rights were violated, and shall take suitable measures to remedy a violation of rights, and to prevent any impairment of the interests affected. It shall not be bound by the applications and may also independently bring an influence to bear on the lawfulness of the award procedure.

(2) Once an award has been made, it cannot be cancelled. If the review procedure becomes obsolete by the granting of an award, by cancellation, by the discontinuance of the award procedure or in any other way, the public procurement tribunal shall determine, on the application of a party, whether there has been a violation of rights. Section 113 (1) shall be inapplicable in this case.

(3) The public procurement tribunal shall decide by administrative act. Decisions shall be enforced, also against public authorities, in accordance with the administrative enforcement acts of the Federation and the Länder. §§ 61 and 86a sentence 2 shall apply mutatis mutandis.

 

§ 115
Suspension of the Award Procedure

(1) If the public procurement tribunal informs the contracting entity in writing about the application for review, the latter must not make the award prior to the decision of the public procurement tribunal and before the expiry of the period for a complaint pursuant to § 117 (1).

(2) The public procurement tribunal may allow the contracting entity, upon its application or upon application by the undertaking that has been named by the contracting entity pursuant to § 101a as the undertaking to be awarded the contract, to award the contract after the expiry of two weeks after the announcement of this decision if, taking into account all interests which may be impaired as well as the interests of the general public in the quick conclusion of the award procedure, the negative consequences of delaying the award until the end of the review outweigh the advantages involved. In its assessment, the public procurement tribunal shall take account of the interests of the general public that the contracting entity carries out its tasks efficiently. The public procurement tribunal shall also consider the overall prospects of the applicant to win the award in the award procedure. The prospects of success of the application for review need not be taken into account in every case. The appellate court may, upon application, reinstate the prohibition of the award pursuant to paragraph (1); § 114 (2) sentence 1 shall remain unaffected. If the public procurement tribunal does not allow the award, the appellate court may, upon application by the contracting entity, allow the immediate award subject to the conditions in sentences 1 to 4. § 121 (2) sentences 1 and 2 and (3) shall apply mutatis mutandis to the proceedings before the appellate court. An immediate complaint pursuant to § 116 (1) shall not be admissible against decisions taken by the public procurement tribunal under this paragraph.

(3) If during the award procedure any rights of the applicant under § 97 (7) are jeopardised other than by the imminent award, the tribunal may, on a specific application, intervene in the award procedure through further preliminary measures. In doing so, it shall apply the evaluation criterion of paragraph 2 sentence 1. This decision shall not be separately challengeable. The public procurement tribunal may enforce the further preliminary measures under the administrative enforcement acts of the Federation and the Länder; the measures shall be immediately enforceable. § 86a sentence 2 shall apply mutatis mutandis.

(4) If the contracting entity claims that the requirements of § 100 (2) letter d are fulfilled, the prohibition of the award pursuant to paragraph 1 shall lapse two days after service of a corresponding brief to the applicant; the public procurement tribunal shall serve the brief without undue delay after its receipt. The appellate court may, upon application, reinstate the prohibition of the award. § 121 (1) sentence 1, (2) sentences 1 and (3) and (4) shall apply mutatis mutandis.

 

§ 115a
Exclusion of divergent Land law

Any deviation under Land law from the provisions on the administrative procedure contained in this subdivision of the Act shall not be permitted.

 

III. Immediate Complaint

 

§ 116
Admissibility, Jurisdiction

(1) Decisions of a public procurement tribunal shall be subject to an immediate complaint. It shall be open to the parties to the proceedings before the public procurement tribunal.

(2) An immediate complaint shall be admissible also if the public procurement tribunal does not decide upon an application for review within the period set out in § 113 (1); in this case the application shall be deemed to have been rejected.

(3) The immediate complaint shall be decided exclusively by the Court of Appeal having jurisdiction at the seat of the public procurement tribunal. An award division shall be set up at every Court of Appeal.

(4) Legal matters pursuant to paragraphs 1 and 2 may be assigned to other Courts of Appeal or the Supreme Court of a Land by ordinance issued by the Land governments. The Land governments may delegate this power to the Land judicial administrations.

 

§ 117
Time Limit, Formal Requirements

(1) An immediate complaint shall be filed in writing with the appellate court within a non-extendable time limit of two weeks beginning upon service of the decision, in the case of § 116 (2) upon the expiry of the time period.

(2) Reasons for the immediate complaint shall be given when it is filed. The statement of reasons for the complaint shall contain:

1. a statement as to the extent to which the decision of the public procurement tribunal is challenged, and a deviating decision is applied for,

2. details of the facts and evidence on which the complaint is based.

(3) The complaint shall be signed by a lawyer admitted to practise before a German court. This shall not apply to complaints by legal persons under public law.

(4) At the same time as the filing of the complaint, the other parties to the proceedings before the public procurement tribunal shall be informed by the complainant by way of the transmission of a copy of the complaint.

 

§ 118
Effect

(1) The immediate complaint shall have a suspensive effect upon the decision of the public procurement tribunal. The suspensive effect shall lapse two weeks after the expiry of the time limit for the complaint. If the public procurement tribunal refuses, upon application, to review the award, the appellate court may, upon application by the complainant, extend the suspensive effect up to the time of the decision on the complaint.

(2) The court shall reject the application pursuant to paragraph 1 sentence 3 if, taking into account all interests which may be impaired, the negative consequences of delaying the award up to the time of the decision on the complaint outweigh the advantages involved. In its consideration, the court shall take account of the interests of the general public that the contracting entity carries out its tasks efficiently. In its decision, the court shall also consider the prospects of success of the complaint, the overall prospects of the applicant to win the award in the award procedure, as well as the interests of the general public in the quick conclusion of the award procedure.

(3) If the public procurement tribunal grants the application for review by prohibiting the award, the award shall not be made as long as the appellate court does not reverse the decision of the public procurement tribunal pursuant to § 121 or § 123.

 

§ 119
Parties to the Appeal Proceedings

The parties to the proceedings before the public procurement tribunal are the parties to the proceedings before the appellate court.

 

§ 120
Procedural Provisions

(1) The parties shall be represented before the appellate court by a lawyer admitted to practise before a German court, acting as their representative. Legal persons under public law may be represented by civil servants or by employees qualified to serve as a judge.

(2) § 69, § 70 (1) to (3), § 71 (1) and (6), §§ 71a, 72, and 73 with the exception of the reference to § 227 (3) of the Code of Civil Procedure, §§ 78, 111 and 113 (2) sentence 1 shall apply mutatis mutandis.

 

§ 121
Preliminary Decision on the Award

(1) Upon application by the contracting entity or upon application by the undertaking named in accordance with § 101a by the contracting entity as the undertaking to be awarded the contract, the court may allow the continuation of the award procedure and the award if, taking into account all interests which may be impaired, the negative consequences of delaying the award up to the time of the decision on the complaint outweigh the advantages involved. In its consideration, the court shall take account of the interests of the general public that the contracting entity carries out its tasks efficiently. In its decision the court shall also consider the prospects of success of the immediate complaint, the overall prospects of the applicant to win the award in the award procedure, and the interests of the general public in a quick conclusion of the award procedure.

(2) The application shall be made in writing and reasons shall be given at the same time. The facts to be put forth as reasons for the application, as well as the reason for the urgency of the matter, shall be substantiated. The appeal proceedings may be suspended until a decision on the application is made.

(3) The decision shall be made and reasons shall be given without undue delay and in no case later than five weeks after receipt of the application; in the event of particular difficulties as to the facts or legal difficulties, the chairman may in exceptional cases extend the period by the required time by declaration to the parties with reasons. The decision may be made without a hearing. The reasons shall explain the lawfulness or unlawfulness of the award proceedings. § 120 shall apply.

(4) No appeal is admissible against a decision made pursuant to this provision.

 

§ 122
End of the Award Procedure after the Decision of the Appellate Court

If an application of the contracting entity pursuant to § 121 is rejected by the appellate court, the award procedure shall be deemed to have ended upon the expiry of 10 days after service of the decision unless the contracting entity takes the measures to restore the lawfulness of the procedure which follow from the decision; the procedure must not be continued.

 

§ 123
Decision on the Appeal

If the court considers the appeal to be well founded, it shall reverse the decision of the public procurement tribunal. In this case, the court shall decide on the matter itself or oblige the public procurement tribunal to decide again on the matter with due consideration of the court’s opinions as to the law. Upon application, it shall state whether the rights of the undertaking having applied for the review were violated by the contracting entity. § 114 (2) shall apply mutatis mutandis.

 

§ 124
Binding Effect and Duty to Refer the Matter

(1) If damages are claimed because of a violation of the provisions governing the award of public contracts, and proceedings were conducted before the public procurement tribunal, the court of general jurisdiction shall be bound by the final decision of the public procurement tribunal and the decision of the Court of Appeal, and of the Federal Court of Justice on the complaint in the case of a referral pursuant to paragraph 2.

(2) If a court of appeal wishes to deviate from a decision of another court of appeal or of the Federal Court of Justice, or if it considers the legal dispute to be of general significance on account of its deviation from decisions of a higher social court or the Federal Social Court, it shall refer the matter to the Federal Court of Justice. The Federal Court of Justice shall decide in lieu of the court of appeal. The Federal Court of Justice may confine itself to deciding only on the matter of divergence and assigning the decision on the merits of the case to the court of appeal, if this seems appropriate from the factual and legal context of the appeal proceedings. The duty to refer the matter shall not apply in proceedings pursuant to § 118 (1) sentence 3 and § 121.

 

THIRD CHAPTER
Other Provisions

 

§ 125
Damages in the Event of an Abuse of Law

(1) If an application pursuant to § 107 or the immediate complaint pursuant to § 116 is unjustified ab initio, the applicant or the complainant shall be obliged to compensate the opponent and the parties for the damage incurred by them due to the abuse of the right to file an application or a complaint.

(2) An abuse shall exist in particular:

1. if a suspension or further suspension of the award procedure is achieved through incorrect statements made intentionally or with gross negligence;

2. if the review is applied for with the intention of obstructing the award procedure or of harming competitors;

3. an application is made with the intention of subsequently withdrawing it for payment of money or other benefits.

(3) If the temporary measures taken by the public procurement tribunal in accordance with a specific application pursuant to § 115 (3) were unjustified ab initio, the applicant shall compensate the contracting entity for the damage arising from the enforcement of the measures that were ordered.

 

§ 126
Claim to Compensation for Damages

If the contracting entity violates a provision intended to protect undertakings, and if the undertaking would have had a real chance without this violation of being granted the award upon an assessment of the tenders, which, as a consequence of that infringement, was adversely affected, the undertaking may demand compensation for the costs of preparing the tender or of participating in an award procedure. Further damage claims shall remain unaffected.

 

§ 127
Empowering Provisions

The Federal Government may by ordinance issue rules with the approval of the Bundesrat:

1. to implement the thresholds of the public procurement directives of the European Union in their current version;

2. to define award procedures for contracts where the contracting entity is active in the fields of drinking water, energy supply or transport, including the selection and examination of undertakings and tenders, the conclusion of the contract, as well as other provisions relating to the award procedure.

3. (abolished)

4. (abolished)

5. (abolished)

6. concerning a procedure whereby contracting entities may obtain a certificate by independent auditors to the effect that their award conduct is in compliance with the provisions of this Act and of the provisions issued on the basis of this Act;

7. concerning a voluntary conciliation procedure of the European Commission pursuant to Chapter 4 of Directive 92/13/EEC of the Council of the European Communities of 25 February 1992 (OJ EC No. L 76 p. 14);

8. concerning the information to be transmitted by the contracting entities to the Federal Ministry of Economics and Technology in order to fulfil obligations arising from directives of the Council of the European Communities.

9. to define the conditions under which contracting entities active in the fields of drinking water, energy supply or transport, as well as contracting entities under the Federal Mining Act may be exempted from the obligation to apply the provisions of this part of the Act, and to define the procedure to be followed in this respect, including the necessary investigatory powers of the Bundeskartellamt in this context.

 

§ 128
Costs of the Proceedings before the Public Procurement Tribunal

(1) Costs (fees and expenses) to cover the administrative expense shall be charged for official acts of the public procurement tribunals. The Administrative Costs Act shall apply.

(2) The fee shall amount to at least EUR 2,500; this amount may for reasons of equity be reduced to a minimum of one tenth of its amount. The fee should not exceed the amount of EUR 50,000, but may be increased up to an amount of EUR 100,000 in individual cases if the expense or the economic significance is unusually high.

(3) A party to the proceedings shall bear the costs insofar as the party is unsuccessful. Several debtors shall be jointly and severally liable. Costs caused by the fault of a party may be imposed upon that party. If the application becomes obsolete by withdrawal or otherwise before the decision of the public procurement tribunal, half of the fee shall be payable by the applicant. The decision which party has to bear the costs shall be based on equitable considerations. For reasons of equity, payment of the fee may be waived entirely or partially.

(4) Insofar as a party to the review proceedings is unsuccessful, that party shall bear the respondent’s expenses necessary for appropriately pursuing the matter or legally defending itself. The expenses of third parties admitted to the proceedings shall only be reimbursable to the extent that the public procurement tribunal imposes them on the unsuccessful party for equitable reasons. If the applicant withdraws his application, he shall bear the respondent’s and the third parties’ expenses necessary for appropriately pursuing the matter. § 80 (1), (2) and (3) sentence 2 of the Administrative Procedure Act and the corresponding provisions of the administrative procedure acts of the Länder shall apply mutatis mutandis. Separate proceedings for the taxation of costs shall not take place.

 

§ 129
Corrective Mechanism of the Commission

(1) If, in the course of an award procedure before the conclusion of a contract, the Federal Government receives a notice from the European Commission informing it of a severe violation of Community law in the area of public contracts which has to be remedied, the Federal Ministry of Economics and Technology shall inform the contracting entity accordingly.

(2) Within 14 calendar days from receipt of this notice, the contracting entity shall submit to the Federal Ministry of Economics and Technology a detailed description of the facts of the case and state whether the alleged violation has been remedied or provide reasons why it has not been remedied, and whether the award procedure is subject to review proceedings or has been discontinued for other reasons.

(3) If the award procedure is subject to review proceedings or has been discontinued, the contracting entity shall inform the Federal Ministry of Economics and Technology without undue delay of the outcome of the review proceedings.

 

§ 129a
Information Duties of the Review Bodies

The public procurement tribunals and the higher regional courts shall inform the Federal Ministry of Economics and Technology by January 31 of each year of the number of review proceedings conducted in the previous year and their results.

 

§ 129b
Provision for Contracting Entities under the Federal Mining Act

(1) In the award of contracts relating to supplies, works or services exceeding the contract thresholds set by Article 16 of Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sector (OJ EU no. L 134, p.1), last amended by Commission Regulation (EC) No 1422/2007 of 4 December 2007 (OJ EU no. L 317, p. 34), contracting entities which are entitled under the Federal Mining Act to explore for or extract oil, gas, coal or other solid fuels, must observe the principles of non-discrimination and competitive procurement in awarding contracts for the exploration for or extraction of oil, gas, coal or other solid fuels. In particular, they must provide undertakings which could be interested in such a contract with adequate information, and apply objective criteria in the award of the contract. This shall not apply to the award of contracts for the purchase of energy or fuels for the production of energy.

(2) The contracting entities under (1) shall inform the European Commission via the Federal Ministry of Economics and Technology of the award of the contracts covered by this provision in accordance with Commission Decision 93/327/EEC of 13 May 1993 defining the conditions under which contracting entities exploiting geographical areas for the purpose of exploring for or extracting oil, gas, coal or other solid fuels must communicate to the Commission information relating to the contracts they award (OJ EU no. L 129, p. 25). They may be exempted from the obligation to apply this provision under the procedure stipulated by the ordinance issued in accordance with § 127 no. 9.

 

PART V
Scope of application of the Act

 

§ 130
Public Undertakings, Scope of application

(1) This Act shall apply also to undertakings which are entirely or partly in public ownership or are managed or operated by public authorities. The provisions of the Parts I to III of this Act shall not be applicable to the German Central Bank [Deutsche Bundesbank] and to the Reconstruction Loan Corporation [Kreditanstalt für Wiederaufbau].

(2) This Act shall apply to all restraints of competition having an effect within the scope of application of this Act, also if they were caused outside the scope of application of this Act.

(3) The provisions of the Energy Industry Act shall not preclude the application of §§ 19, 20 and 29 to the extent that no other regulation is provided under § 111 of the Energy Industry Act.

 

PART VI
Transitional and Final Provisions

 

§ 131
Transitional Provisions

(1) Exemptions of agreements and decisions pursuant to § 4 (2) and § 9 (3) sentence 1 and 4 and exemptions of recommendations issued by small or medium-sized enterprises pursuant to § 22 (2) of the Act against Restraints of Competition in the version applicable on 30 June 2005, shall become ineffective on 31 December 2007. Before this date §11 (1), §§ 12 and 22 (6) shall continue to be applied in the version applicable on 30 June 2005.

(2) Decisions of the cartel authority by which agreements and decisions are exempted pursuant to § 10 (1) in the version applicable on 30 June 2005, and exemptions of licence agreements pursuant to § 17 (3) in the version applicable on 30 June 2005, shall become ineffective on 31 December 2007. If the decision of exemption of the cartel authority expires at an earlier point in time, this earlier point in time period shall prevail. Before the date mentioned in sentence 1, §11 (1) and § 12 shall continue to be applied in the version applicable on 30 June 2005.

(3) Paragraph 2 sentence 1 shall apply mutatis mutandis to decisions of the cartel authority by which competition rules are exempted pursuant to § 26 (1) and (2) sentence 1 in the version applicable on 30 June 2005.

(4) Instead of §§ 34 and 34a, only § 34 in the version applicable on 30 June 2005 shall be applied to an infringement of a provision of competition law or a violation of a decision by the cartel authority that has been committed until 30 June 2005.

(5) § 82a (1) shall apply to proceedings in which the court has not scheduled a hearing until the entry into force of this Act. § 82a (2) shall apply to all judgments that have been rendered after 30 June 2009.

(6) §§ 103, 103a and 105 as well as those other provisions of the Act Against Restraints of Competition as published on 20 February 1990 (Federal Gazette I, page 235), last amended by Article 2 (3) of the Act of 26 August 1998 (Federal Gazette I, page 2512) which refer to them, shall continue to apply insofar as they concern the public supply of water. The same shall apply, to the extent mentioned above, to provisions to which the above provisions refer.

(7) § 29 shall no longer be applied after 31 December 2012.

(8) Award proceedings which were initiated before 24 April 2009, including ensuing review proceedings, and review proceedings pending on 24 April 2009 shall be terminated in accordance with the previously applicable rules.

Annex (to § 98 no. 4)

(Source: Federal Law Gazette, I 2009, p. 797)

Activities in the field of the supply of drinking water, energy or transport services are:

1. Supply of Drinking Water:

The provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of drinking water and the supply of drinking water to such networks; this shall also apply if this activity is connected with the disposal or treatment of sewage or with hydraulic engineering projects, irrigation or land drainage, provided that the volume of water to be used for the supply of drinking water represents more than 20% of the total volume of water made available by such projects or irrigation or drainage installations; in the case of contracting entities under § 98 no. 4 the activity shall not be considered an activity in the field of the supply of drinking water where the production of drinking water is necessary for carrying out an activity other than the supply of drinking water or energy or transport services, and where the supply to the public network depends only on the contracting entity’s own consumption and has not exceeded 30% of the entity’s total production of drinking water, having regard to the average for the preceding three years, including the current year.

2. Supply of Electricity and Gas:

The provision and operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of electricity or the production of gas as well as the supply to these networks with electricity or gas; the activity of contracting entities under § 98 no. 4 shall not be considered an activity in the field of the supply of electricity and gas where the production of electricity or gas is necessary for carrying out an activity other than the supply of drinking water or energy or transport services, where the supply of electricity or gas to the public network depends only on the contracting entity’s own consumption, where the supply of gas is also aimed only at the economic exploitation of such production, if the supply of electricity has not exceeded 30 per cent of the entity’s total production of energy, having regard to the average for the preceding three years, including the current year, and if the supply of gas amounts to not more than 20 per cent of the entity’s turnover pursuant to § 98 no. 4;

3. Supply of Heat:

The provision or operation of fixed networks intended to provide a service to the public in connection with the production, transport or distribution of heat and the supply of heat to these networks; this activity shall not be considered an activity in the field of heat supply where the production of heat by contracting entities under § 98 no. 4 is the unavoidable consequence of carrying out an activity in the field of drinking water or energy supply or transport services, where the supply to the public network is aimed only at the economic exploitation of such production and amounts to not more than 20% of the entity’s turnover, having regard to the average for the preceding three years, including the current year;

4. Transport:

The provision and operation of airports intended to provide a service to carriers in the air transport sector by airport undertakings which in particular have been granted a licence under § 38 (2) no. 1 of the Regulation on Certification and Licensing in Aviation [Luftverkehrszulassungsordnung] as published on 10 July 2008 (Federal Law Gazette I p. 1229) or require such a licence;

the provision and operation of ports or other terminal facilities intended to provide a service to carriers by sea or inland waterway;

the provision of transport services, the provision or operation of infrastructure facilities intended to provide a service to the public in the field of transport by railway, tramway or other rail transport, by cable and automated systems, in the public transport of passengers within the meaning of the Passenger Transport Act [Personenbeförderungsgesetz] also by bus and trolleybus.

LETTER OF CHINA BANKING REGULATORY COMMISSION CONCERNING APPROVAL FOR XIAMEN BRANCH OF CHIYU BANKING CORPORATION LIMITED TO DEAL IN RMB BUSINESS SERVICES FOR NON-FOREIGN-FUNDED ENTERPRISES

Letter of China Banking Regulatory Commission concerning Approval for Xiamen Branch of Chiyu Banking Corporation Limited to Deal in
RMB Business Services for Non-foreign-funded Enterprises

Chiyu Banking Corporation Limited,

The letter which was signed by Wu Wengong, general manager of your bank, and was addressed to this Commission has been received.

The following reply is hereby given to you according to the Regulation of the People’s Republic of China on the Administration of
Foreign-funded Financial Institutions (Order No. 340 of the State Council, hereinafter referred to as the Regulation) and the Detailed
Rules for the Implementation of the Regulation of the People’s Republic of China on the Administration of Foreign-funded Financial
Institutions (Order No. 4,2004 of China Banking Regulatory Commission, hereinafter referred to as the Detailed Rules),:

Within the scope prescribed in Article 17 of the Regulation, your Xiamen Branch is hereby approved to deal in RMB business services
for foreign-funded enterprises, China-based foreign institutions, mainland-based representative offices of Hong Kong, Macao and Taiwan,
and for aliens, the compatriots from Hong Kong, Macao and Taiwan, and non-foreign-funded enterprises.

Your bank is hereby approved to make additional allocations of a sum of RMB working capital in convertible currencies, equivalent
to 100 million Yuan, to your Xiamen Branch. After increasing the capital, the working capital of this Branch comes up to 300 million
Yuan, of which the foreign exchange working capital in convertible currencies comes up to 200 million Yuan and the RMB working capital
comes up to 100 million Yuan.

After increasing capital and performing statutory procedure in accordance with the Regulation and the Detailed Rules, your Xiamen
Branch may, under Article 35 of the Detailed Rules, deal in providing foreign exchange business services for various clients under
the following scope: providing RMB business services for foreign-funded enterprises, China-based foreign institutions, and mainland-based
representative offices of Hong Kong, Macao and Taiwan, and for aliens, the compatriots from Hong Kong, Macao and Taiwan, and non-foreign-funded
enterprises, pooling public deposits, granting short-term, medium-term and long-term loans, transacting the acceptance and discount
of negotiable instruments, buying and selling government bonds and financial bonds, buying and selling non-stock negotiable instruments
denominated in a foreign currency, providing services on letter of credit and guaranties, transacting domestic and overseas settlements,
buying and selling foreign currencies for itself or on a commissioned basis, converting foreign currencies, inter-bank funding, bank
card business, safety-deposit box, providing credit-standing investigation and consultation services, as well as other business activities
upon the approval of China Banking Regulatory Commission.

China Banking Regulatory Commission

January 6, 2006



 
China Banking Regulatory Commission
2006-01-06

 







THE ADMINISTRATIVE MEASURES FOR GRASS SEEDS

Ministry of Agriculture

Order of the Ministry of Agriculture

No. 56

The Administrative Measures for Grass Seeds, which were adopted at the 2nd executive meeting of the Ministry of Agriculture on January
5, 2006, are hereby promulgated and shall come into force as of March 1, 2006. The Interim Measures for the Administration of Pasture
Seeds (for Trial Implementation) as promulgated by the Ministry of Agriculture, Animal Husbandry and Fishery on October 25, 1984
shall be simultaneously abolished.

Minister Du Qinglin

January 12, 2006

The Administrative Measures for Grass Seeds

Chapter I General Provisions

Article1

The present Measures are formulated according to the Seed Law of the People’s Republic of China and the Pasture Law of the People’s
Republic of China for the purpose of regulating and intensifying the administration of grass seeds, elevating the quality of grass
seeds, safeguarding the legitimate rights and interests of seed selectors, producers, business operators and users and promoting
the sound development of the grass industry.

Article2

Such activities as selection and cultivation of grass varieties as well as production, business operation, use and management of grass
seeds within the territory of the People’s Republic of China shall be governed by the present Measures.

Article3

The term “grass seeds” as mentioned in the present Measures refers to such materials of planting or propagation as grains, fruits,
roots, stems, seedlings, leaves and buds for the purposes of animal breeding, ecological construction and afforestation and embellishment.

Article4

The Ministry of Agriculture shall take charge of the administration of grass seeds throughout the country.

The administrative departments of pasture of local people’s governments at or above the county level shall take charge of the administration
of grass seeds within their administrative divisions.

Article5

The administrative department of pasture and its functionary shall not participate in or engage in any production or business operation
of grass seeds. An entity that engages in the production and business operation of grass seeds shall not participate in or engage
in the administration of grass seeds. The administrative department of grass seeds and entities that engage in the production and
business operation of grass seeds shall be independent from each other in regard of personnel and finance.

Article6

The administrative department of pasture of the local people’s government at or above the county level shall intensify the protection
of grass germplasm resources and the selection, cultivation, production, innovation and popularization of improved varieties, encourage
the combination of selection, cultivation, production and business operation of grass seeds and award any entity or individual that
has outstanding performance in such work as the protection of grass germplasm resources or the selection, cultivation, production
and popularization of improved varieties.

Chapter II Protection of Grass Germplasm Resources

Article7

The state protects grass germplasm resources and no entity or individual may injure or damage any resource.

Article8

The Ministry of Agriculture may formulate a roster of key grass germplasm resources under state protection according to relevant requirements.

Article9

The Ministry of Agriculture may organize relevant entities to collect, straighten out, authenticate, register, preserve, exchange
and utilize the grass germplasm resources, establish a database of grass germplasm resources and publicize the roster of grass germplasm
resources as available on a periodic basis.

Article10

The Ministry of Agriculture and the administrative departments of pasture of the provincial people’s governments may, according to
relevant requirements, establish protection zones or areas of grass germplasm resources at the state or local level.

Article11

It’s prohibited to collect or excavate any key natural grass germplasm resource under state protection. In the case of any special
circumstance such as any actual requirement of scientific research for collection or excavation, it shall be subject to the examination
of the administrative department of pasture of the provincial people’s government and be reported to the Ministry of Agriculture
for examination and approval as well.

Article12

Any grass germplasm resource as imported from a foreign country shall be subject to relevant inspection and quarantine according to
law.

As to any grass seed that has been introduced for the first time, an isolated trial planting shall be carried out and a risk appraisal
shall be conducted thereon as well. The said grass seed may be put into application only after it has been confirmed as secure.

Article13

The state has sovereignty over grass germplasm resources. Where any entity or individual provides any grass germplasm resource to
a foreign country, it shall be subject to the examination of the administrative department of pasture of the people’s government
of the local province, autonomous region or municipality directly under the Central Government and shall be reported to the Ministry
of Agriculture for approval.

Chapter III Selection and Cultivation as well as Examination and Approval of Grass Varieties

Article14

The state encourages an entity or individual to engage in the selection and cultivation of grass varieties, encourage an entity of
scientific research to coordinate with relevant enterprise in the selection and cultivation of grass varieties and encourage enterprises
to invest in the selection and cultivation of grass varieties.

Article15

The state adopts an examination and approval system for new grass varieties. Where any new grass variety fails to pass relevant examination
and approval, no related advertisement may be issued and neither may relevant business operation and popularization be conducted.

Article16

A National Committee for Grass Examination (hereinafter referred to as the NCGE) as established by the Ministry of Agriculture shall
take charge of the examination and approval of new grass varieties.

The NCGE shall be composed of specialized personnel that hold senior professional and technical post_titles or assume any post of section
chief or above in such aspects as scientific research, teaching, technical popularization and administration.

The director, associate directors and commissioners of the NCGE shall be appointed by the Ministry of Agriculture.

Article17

As to any new grass variety that has passed the examination and approval, the NCGE shall issue a certificate thereto and the Ministry
of Agriculture shall make an announcement thereon.

An announcement on examination and approval shall include variety names, selector and producer and adaptive areas.

As to any new grass variety that fails to pass the examination and approval, the NCGE shall inform the applicant in written form and
give relevant explanations as well.

Article18

Where any foreign citizen, enterprise or other organization that has no habitual residence or business place in China applies for
the examination and approval of any new grass variety in China, he/it shall entrust a Chinese entity with the qualification of legal
person that engages in the scientific research, production or business operation of grass varieties to handle the matter on his/its
behalf.

Chapter IV Production of Grass Seeds

Article19

A licensing system shall be adopted for the production of major grass seed products.

A License for Production of Grass Seeds shall be subject to the verification and issuance of the administrative department of pasture
of the provincial people’s government at the locality of the entity or individual that undertakes the production of grass seeds.

Article20

An entity or individual that applies for collecting a Production License for Grass Seeds shall meet the following requirements:

(1)

Having the conditions of isolation and breeding for propagation of grass seeds;

(2)

Having a production site of grass seeds where there is no quarantine subject as prescribed by the state;

(3)

Having the relevant capital as well as facilities for production and inspection compatible with the production of grass seeds;

(4)

Having relevant specialized production and inspection technicians; and

(5)

Meeting any other requirements as prescribed by any law or regulation.

Article21

Any person or entity that applies for collecting a Production License for Grass Seeds shall submit the following materials:

(1)

An application form for the Production License for Grass Seeds;

(2)

The certification on the qualification of specialized production and inspection technicians;

(3)

The certification materials on its registered capital;

(4)

A checklist and photos of inspection facilities and instruments and equipment as well as the certification on the property right or
legal use right thereof;

(5)

An introduction to the grass seed yard or a photo of grass drying equipment as well as the certification on the property right or
legal use right thereof;

(6)

A photo of the grass warehousing facilities as well as the certification on the property right or legal use right thereof;

(7)

The inspection and quarantine certification on the production site of grass seeds as well as an introduction thereto;

(8)

A quality guaranty system of grass seed production; and

(9)

An introduction to variety properties.

Where any variety is an authorized one, a written certification or variety transfer contract as approved by the owner of the variety
shall be provided. Where any grass seed in production falls within the trans-genetic category, a Safety Certificate of Agricultural
Trans-genetic Living Things shall be provided.

Article22

The organ in charge of examination and approval shall conclude an examination and make a decision on whether or not to issue a Production
License for Grass Seeds within 20 days as of the day when it accepts an application. In the case of disapproval, it shall notify
the relevant applicant in written form and give an explanation.

Where necessary, the organ in charge of examination and approval may carry out an on-the-spot inspection regarding production site,
airing and drying facilities, warehousing facilities, testing equipment and instruments.

Article23

The format of the Production License for Grass Seeds shall be uniformly formulated by the Ministry of Agriculture.

The valid term of a Production License for Grass Seeds is 3 years. Where any production needs to be extended upon expiration of the
Production License for Grass Seeds, the relevant licensee may, 3 months before expiration, apply for renewing the Production License
for Grass Seeds upon the strength of the original License according to the original procedures for application.

Within the valid term of a Production License for Grass Seeds, where any item as indicated on the License is altered, the relevant
licensee shall handle the formalities for alteration in the original organ in charge of examination and approval and shall provide
relevant certification materials.

Article24

No entity or individual may, without a Production License for Grass Seeds, engage in any production of major grass seed products.

It’s prohibited to forge, alter, purchase or sell, or rent or borrow any Production License for Grass Seeds.

Article25

An entity or individual that engages in the production of grass seeds shall carry out the grass seed production according to the Technical
Rules on Grass Seed Production and establish an archive of grass seed production, which shall indicate such contents as production
site, environmental conditions, original crops, source and quality of parent seeds, persons in charge of technologies, field-check
record, weather record of production place, and seed distribution etc. A production archive shall be preserved for 2 years after
the grass seed production is started.

Chapter V Business Operation of Grass Seeds

Article26

A licensing system shall be adopted for the business operation of grass seeds. An entity or individual that engages in grass seed
production shall obtain a License for the Business Operation of Grass Seeds before it/he goes to the administrative organ for industry
and commerce to apply for handling or altering the business license upon the strength of its License for the Business Operation of
Grass Seeds unless it is otherwise prescribed by the Seed Law of the People’s Republic of China that a License for the Business Operation
of Grass Seeds is not required.

A business operation license for crossbreed seeds, parent seeds or original seeds of original strains of major grass seeds shall be
subject to the examination and approval of the administrative department of pasture of the people’s government at the county level
where the relevant entity or individual that engages in the business operation of grass seeds is located and shall be subject to
the verification of and be issued by the administrative department of pasture of the provincial people’s government.

As to any person or entity that engages in the import of grass seeds, a License for the Business Operation of Grass Seeds shall be
subject to the examination and approval of the administrative department of pasture of the provincial people’s government where the
relevant entity or individual that engages in the business operation of grass seeds is located and shall be subject to the verification
of and be issued by the Ministry of Agriculture.

Any other business operation licenses for grass seeds shall be subject to the verification of and be issued by the administrative
department of pasture of the people’s government at the county level where the relevant entity or individual that engages in the
business operation of grass seeds is located.

Article27

Any entity or individual that applies for collecting a License for the Business Operation of Grass Seeds shall meet the following
requirements:

(1)

Having sufficient capital compatible with the variety and quantity of grass seeds under business operation as well as the capability
of bearing civil liabilities independently;

(2)

Having relevant personnel who are capable of identifying the varieties of and examining the quality of grass seeds under business
operation as well as mastering the technologies for preserving and storing grass seeds;

(3)

Having a business place as well as warehousing facilities compatible with the varieties and quantity of grass seeds under business
operation; and

(4)

Meeting any other requirement as prescribed by any law or regulation.

Article28

An entity or individual that applies for collecting a License for the Business Operation of Grass Seeds shall submit the following
materials:

(1)

An application form for a License for the Business Operation of Grass Seeds;

(2)

A photocopy of its business place as well as the certification on property right or legal use right thereof; and

(3)

A checklist and photo of warehousing facilities of grass seeds as well as the certification on property right or legal use right thereof.

Article29

The organ in charge of examination and approval shall conclude an examination and make a decision on whether or not to approve and
issue a License for the Business Operation of Grass Seeds within 20 days as of accepting an application. In the case of disapproval,
an explanation shall be given to the relevant applicant in written form.

Where necessary, the organ in charge of examination and approval may carry out an on-the-spot inspection on the relevant business
place, the facilities for processing, packing and preservation as well as inspection equipment and facilities for grass seed quality.

Article30

The format for a License for the Business Operation of Grass Seeds shall be uniformly prescribed by the Ministry of Agriculture.

The valid term of a License for the Business Operation of Grass Seeds is 3 years. Where any business needs to be extended upon expiration
of the License for the Business Operation of Grass Seeds, the relevant licensee may, 3 months before expiration, apply for renewing
the License for the Business Operation of Grass Seeds upon the strength of the original License according to the original procedures
for application.

Within the valid term of a License for the Business Operation of Grass Seeds, where any item as indicated on the License is altered,
the relevant licensee shall handle the formalities for alteration in the original organ in charge of examination and approval and
shall provide relevant certification materials.

Article31

No entity or individual may, without a License for the Business Operation of Grass Seeds, engage in the business operation of grass
seeds.

It’s prohibited to forge, alter, purchase or sell, or rent or borrow any License for the Business Operation of Grass Seeds.

Article32

A business operator of grass shall be responsible for the quality of grass seeds under business operation and shall, according to
the provisions of relevant laws and regulations, provide relevant consultation services to users of grass seeds in respect of properties
and planting technologies.

Article33

The grass seeds at sale shall be packaged. If they are packed into small packages, the package undertaking entity, the name of the
original grass seeds or the variety name of the grass seeds and place of origin shall be indicated on the small packages.

Article34

A label shall be attached to any grass seed at sale, which shall indicate the category of the grass seed, variety name, seed batch
number, production place, production time, name of the production entity and quality indicators, etc..

The contents as indicated on a label shall comply with the real state of the grass seed at sale.

A label in Chinese shall be attached to any imported grass seed at sale.

Article35

A business operator of grass seeds shall establish an operating archive of grass seeds, which shall indicate such contents as brief
introduction to the source, processing, storage, transport and all links of quality testing of grass seeds as well as to relevant
persons in charge and sales whereabouts.

An operating archive shall be preserved for 2 years after the sale of grass seeds.

Article36

The administrative department of pasture at or above the county level shall intensify the supervision and administration of grass
seed advertising. The advertised contents regarding grass seeds shall comply with relevant laws and regulations. The major properties
as described therein shall comply with the announcement upon examination and approval so as to avoid any false or misleading publicity.

Chapter VI Quality of Grass Seeds

Article37

The Ministry of Agriculture shall take charge of formulating a national supervisory sampling planning for grass seed quality as well
as a supervisory sampling plan for grass seed quality at its level. The administrative departments of pasture of the people’s governments
at or above the county level shall formulate the relevant supervisory sampling plan according to the national planning and local
situations.

The expenses for supervisory sampling shall be incorporated into the budget of the administrative department of pasture and shall
not be collected from any enterprise subject to sampling.

As to any enterprise that has gone through a supervisory sampling as conducted by the administrative department of pasture, the administrative
department of pasture at the same level or at any lower level shall not carry out any repetitive supervisory sampling over the same
crop seed of the foregoing enterprise within 6 months as of sampling.

Article38

The administrative department of pasture may entrust an inspection institution of grass seeds to carry out a quality inspection on
grass seeds.

Any institution that engages in quality inspection of grass seeds shall have relevant testing conditions and capabilities and shall
pass the examination as conducted by the relevant competent department under the people’s government at or above the provincial level.

Article39

A inspector of grass seeds in an inspection institution of grass seed quality shall meet the following requirements:

(1)

Having relevant academic background at or above the junior college level or professional post_title at or above the intermediate level;

(2)

Engaging in the technological work relating to the inspection of grass seeds for no fewer than 3 years; and

(3)

Having passed an examination as conducted by the administrative department of pasture of the people’s government at or above the provincial
level.

Article40

A quality inspection shall be carried out according to the State Rules on Forage Seed Testing for the grass seeds subject to supervisory
sampling. In the case of no relevant provision in the State Rules on Forage Seed Testing, the relevant quality inspection shall be
conducted according to the International Rules on Seed Testing.

Article41

Such contents as the name of relevant grass seed, sampling date, quantity of relevant grass seed under testing, seed batch number
and testing results shall be indicated in a Testing Report on Grass Seed Quality.

A Testing Report on Grass Seed Quality shall be filled in by a seed inspector who conducts testing upon the strength of qualification
certificate, be issued by the principal of the inspection institution and be affixed with a special examination seal of the inspection
institution.

Article42

Where any person subject to sampling has any different opinion over any inspection result, he shall, within 15 days as of receiving
a notice on inspection result, file a written application for re-examination to the administrative department of pasture that has
distributed the relevant tasks. Where any person fails to file an application within the time limit, it shall be deemed that he has
accepted the inspection result.

The administrative department of pasture that has received an application for re-examination shall carry out the relevant examination
and, where it so requires, arrange the relevant re-examination in a timely manner.

Article43

It is prohibited to produce or operate any fake or bad grass seed:

Under any of the following circumstances, a grass seed falls within the category of fake grass seeds:

(1)

Imitating grass seed by any non-grass-seed or imitating grass seeds of other variety by grass seeds of this variety; or

(2)

The category, variety or production place of any grass seed not complying with the contents as indicated on the label.

Under any of the following circumstances, a grass seed falls within the category of bad grass seeds:

(1)

The quality failing to meet the standards for use of seeds as prescribed by the state;

(2)

The quality failing to meet the indicators as labeled;

(3)

Failing to be used due to deterioration;

(4)

The ratio of wild weed seeds going beyond the relevant provision; or

(5)

Carrying any quarantine subject as prescribed by the state.

Article44

Any grass seed under production and business operation shall be subject to inspection and quarantine according to the provisions of
relevant laws and regulations on plant inspection and quarantine so as to prevent any spread of dangerous deceases of plants, insects,
wild weeds and other harmful living things.

No entity or individual may carry out any inoculation research on plant/insect diseases in any production base of grass seeds.

Chapter VII Administration of Import and Export of Grass Seeds

Article45

An entity that engages in the import or export of grass seeds shall, in addition to having obtained a License for the Business Operation
of Grass Seed, obtain the qualification for trade regarding import and export of grass seeds according to the relevant provisions
of the laws and regulations of the state on foreign trade.

Article46

An examination and approval system shall be adopted for the import and export of grass seeds.

Any entity or individual that applies for the import or export of grass seeds shall fill in an Examination and Approval Form for Import
(Export) of Grass Seeds and be subject to the examination and approval of the administrative department of pasture of the people’s
government at the provincial level. The relevant formalities for import and export shall be handled according to law after the said
Examination and Approval Form for Import (Export) of Grass Seeds is reported to the Ministry of Agriculture for examination and approval.

The valid term for an examination and approval document of grass seeds shall be 3 months.

Article47

The grass seeds to be imported or exported shall meet the following requirements:

(1)

The quality of grass seeds shall meet the state standards;

(2)

The relevant certification on the name, quantity and place of origin of relevant grass seed is authentic and complete; and

(3)

It is not any of the grass seeds as prohibited by the state from import or export.

Any entity or individual that applies for importing or exporting any grass seed shall submit the following materials:

(1)

A License for the Business Operation of Grass Seeds, a duplicate of the business license as well as the trade qualification certification
on import and export;

(2)

The certification materials on the name, quantity and place of origin of the relevant grass seed; and

(3)

The international examination and approval certificate of the imported grass variety or a roster of registered varieties;

Article48

Where any grass seed is imported for producing seeds for a foreign country, it may not be restricted by Article45 of the present Measures.
However, a contract on seed production for a foreign country shall be provided. Any imported seed shall be only applied in seed production
and the products as generated therefrom shall not be sold in the domestic market.

Chapter VIII Supplementary Provisions

Article49

Any entity or individual that violates any provision of the present Measures shall be punished according to the relevant provisions
of the Seed Law of the People’s Republic of China and the Pasture Law of the People’s Republic of China.

Article50

The administration of selection, cultivation, testing, popularization, production, processing, business operation and import and export
of trans-genetic grass seeds shall be governed by the provisions of the Regulation on the Safety Administration of Agricultural Trans-genetic
Living Things as well.

Article51

As to the collection, excavation or provision-to-the-overseas or introduction-from-the overseas of any grass germplasm resource that
has been listed into the roster of key wild plants under the state protection, aside from the formalities for examination and approval
as prescribed by the present Measures, the relevant formalities for examination and approval shall be handled according to the Regulation
of the People’s Republic of China on the Protection of Wild Plants and the Measures for the Protection of Agricultural Wild Plants.

Article52

The term “major grass seeds” as mentioned in the present Measures refers to the following: clover, erect milkvetch, caragana, sainfoin,
all-grass of red clover, hedysarum, stylosanthes, kikuyu grass, siberian wildrye grass, fairway wheat grass, buffells grass, fescue,
orchard grass, puccineuia distans, elymus rectisetus, bicolor lespedeza, coronilla, smooth brome, oat, tricale, rye-grass, sorghum
sudanense, melilotus officinalis and poaarachnifera, and any other 2 or 3 grass seeds as respectively determined by the administrative
department of pasture of the people’s government of every province, autonomous region or municipality directly under the Central
Government

The term “grass seeds” as mentioned in the present Measures shall not include any field crop such as corn and forage sorghum.

Article53

The present Measures shall come into force as of March 1, 2006. The Interim Measures for the Administration of Forage Seeds (for Trial
Implementation) shall be simultaneously abolished.



 
Ministry of Agriculture
2006-01-12

 







CONSTITUTION ACT, 1982 – page 22

NOTES (1) The enacting clause was repealed by the Statute Law Revision Act, 1893, 56-57 Vict., c. 14 (U.K.). It read as...