(1) In a legal action concerning a claim pursuant to Section 33a(1) or Section 33g(1) or (2), the court may request, upon application by a party, that the competition authority provide documents and items that are included in its files on a proceeding or kept in official custody during a proceeding if the applicant credibly demonstrates that
1. it has a claim for damages against another party pursuant to pursuant to 33a(1) and
2. the information expected to be included in the file cannot be obtained from another party or third party with reasonable effort.
The court shall decide on the application by decree. This decree shall be subject to immediate appeal.
(2) The court may make accessible to the applicant the documents and items submitted or provide the applicant with information included in them, to the extent that
1. the disclosure corresponds to the applicant's request,
2. the facts or evidence are necessary for the assertion of a claim pursuant to Section 33a(1) or for the defence against this claim and
3. it is not disproportionate to make the documents and items accessible or provide the information.
Before making evidence accessible or providing information, the court shall hear those affected by the disclosure and the competition authority. Facts and evidence which are required to remain confidential shall be exempted from the disclosure of evidence or provision of information. Section 89b(6) shall apply mutatis mutandis.
(3) The request pursuant to subsection (1) or the request for the provision of official information by the competition authority shall be excluded where this is disproportionate. In its decision on the request pursuant to subsection (1), on the request for the provision of official information by the competition authority and on making documents and items accessible or providing information pursuant to subsection (2), the court shall take into account Section 33g(3) and, in particular,
1. the precision of the application as to the type, subject and content of the evidence expected to be included in the competition authority's file,
2. the pendency of the claim under Section 33a(1),
3. the effectiveness of public enforcement of competition law or of Regulation (EU) 2022/1925, in particular the influence of such disclosure on ongoing proceedings and on the functioning of leniency programmes and settlement proceedings.
(4) The competition authority may refuse to provide documents and items which are included in its files on a proceeding or kept in official custody during a proceeding, if these contain:
1. leniency statements,
2. settlement submissions that have not been withdrawn,
3. internal notes by the authorities or
4. communication between the competition authorities or between the competition authority and the general prosecutor at the higher regional court for the district in which the competition authority has its seat or the Public Prosecutor General of the Federal Court of Justice.
Section 33g(5) and Section 89b(8) shall apply mutatis mutandis; the latter provision shall apply with the proviso that it also applies to the examination of documents and items within the meaning of sentence 1 nos 3 and 4.
(5) Where the inspection of the competition authority's file or the provision of information serves the purpose of filing a claim for damages on account of an infringement pursuant to Section 33(1) or preparing such claim, Sections 406e and 475 of the German Code of Criminal Procedure shall not apply in addition to subsections (1) to (3). The right to request access to the fining decisions of a competition authority on the basis of these provisions shall remain unaffected. Section 33g(1) and (2) shall not apply to competition authorities that are in possession of evidence.
(6) The provisions of subsections (1) to (5) shall apply mutatis mutandis to authorities and courts which have files or parts or copies of files of a competition authority in their files. The competition authority that keeps or has kept the file shall be involved in accordance with subsection (2) sentence 2.