(1) Whoever is in possession of evidence necessary for the assertion of a claim for damages under Section 33a(1) shall be obliged to surrender such evidence to a party that credibly demonstrates that it has such a claim if said party specifies the evidence as precisely as possible on the basis of reasonably available facts.
(2) Whoever is in possession of evidence necessary for the defence against a claim for damages under Section 33a(1) shall be obliged to surrender such evidence to the party against which a case for a claim under subsection (1) or a claim for damages under Section 33a(1) is pending if said party specifies the evidence as precisely as possible on the basis of reasonably available facts. The right under sentence 1 shall also exist where a party has applied for a declaratory decision that another party has no claim against it under Section 33a(1) and the former does not contest the infringement within the meaning of Section 33a(1) on which the claim for damages is based.
(3) The surrender of evidence under subsections (1) and (2) shall be excluded where, considering the legitimate interests of all parties concerned, this is disproportionate. In this consideration, particular account shall be taken of:
1. the extent to which the claim is based on information and evidence that is available;
2. the scope of evidence and the costs of surrendering the evidence, in particular where such evidence is requested from a third party;
3. the exclusion of a discovery of facts that are not relevant for the enforcement of the claim pursuant to Section 33a(1) or for the defence against such claim;
4. the binding effect of decisions pursuant to Section 33b;
5. the effectiveness of public competition law enforcement; and
6. the protection of trade and business secrets as well as any other confidential information and the protective measures taken for this purpose.
No account shall be taken of the interest of the party subject to a claim under Section 33a(1) in preventing the enforcement of that claim.
(4) The surrender of a document or record, also on the content of a hearing conducted during a competition authority's proceeding, shall be excluded where and to the extent that it includes a voluntary statement made by, or on behalf of, an undertaking or a natural person to a competition authority,
1. describing that undertaking's or natural person's knowledge of or role in a cartel, and to the extent that such statement was drawn up specifically for submission to the competition authority with a view to obtaining immunity or a reduction of fines under a leniency programme (leniency statement); or
2. describing the undertaking's or natural person's acknowledgement of, or renunciation to dispute, the participation in an infringement of competition law and responsibility for that infringement of competition law, and to the extent that such statement was drawn up specifically to enable the competition authority to apply a simplified or expedited procedure (settlement submission).
Evidence that has not been specifically produced for a competition authority's proceeding shall not be considered part of the leniency statement irrespective of whether or not the information is also contained in the files of a competition authority. Where a party obliged to surrender evidence claims that a piece of evidence or parts thereof are excluded from the obligation to surrender evidence in accordance with sentence 1, the claimant may, in accordance with Section 89b(8), demand surrender to the competent court for the sole purpose of examining the validity of this claim.
(5) Until the final conclusion of the competition authority's proceedings or the proceedings to enforce Regulation (EU) 2022/1925 against all parties involved, the surrender of evidence shall be excluded if and to the extent that it contains the following:
1. information that has been produced by a natural or legal person or association of persons specifically for the competition authority's proceedings;
2. communications from the competition authority to the parties to the proceedings; or
3. settlement submissions that have been withdrawn.
(6) The surrender of evidence under subsections (1) and (2) may be refused if and to the extent that the party in possession of the evidence would, in a legal dispute over a claim under Section 33a(1) of this Act, be entitled to refuse to testify in accordance with Section 383(1) nos 4 to 6 or Section 384 no 3 of the German Code of Civil Procedure. In this case, the claimant may request that the evidence be surrendered to the competent court for a decision pursuant to Section 89b(6). Sentence 2 shall not apply to
1. persons within the meaning of Section 383(1) nos 4 and 5 of the German Code of Civil Procedure, to the extent that they would be entitled to refuse to testify under this provision; and
2. persons within the meaning of Section 203(1) nos 1 to 5, subsections (2) and (3) of the German Criminal Code [Strafgesetzbuch], to the extent that they would be entitled to refuse to testify under Section 383(1) no 6 of the German Code of Civil Procedure.
Assistants of clerics and persons working for a cleric as part of their training for the exercise of the clerical profession shall be treated as clerics.
(7) Where the party obliged to surrender evidence in accordance with subsections (1) or (2) incurs costs which the party may reasonably consider necessary, that party shall be entitled to claim from the other party the reimbursement of these costs.
(8) Where the party obliged to surrender evidence in accordance with subsection (1) or (2) intentionally or with gross negligence provides incorrect or incomplete information, or fails to provide information, or intentionally or with gross negligence surrenders incorrect or incomplete evidence, or fails to surrender evidence, the party shall be liable for any resulting damage incurred by the claimant.
(9) The information provided or evidence surrendered by a party obliged to do so under subsections (1) and (2) may only be used in a criminal proceeding or administrative offence proceeding against that party or against that party's relatives as listed in Section 52(1) of the German Code of Criminal Procedure [Strafprozessordnung] on account of an offence committed prior to the provision of the information or the surrender of the evidence only if the party obliged agrees to such use. This shall also apply where the information is provided or repeated during an examination of a witness or party. Sentences 1 and 2 shall not apply in proceedings against undertakings.
(10) Subsections (1) to (9) and Sections 89b to 89d on the surrender of evidence shall apply mutatis mutandis to the provision of information.