The Federal Court of Justice (BGH), in connection with the parliamentary committee of inquiry into the Wirecard affair, clarified central questions regarding the confidentiality obligations of professionals and their release in the context of parliamentary investigations with its decision of February 16, 2021 (Case No. StB 43/20, StB 44/20, and StB 48/20). The decision pertains to significant areas such as the right to refuse testimony, confidentiality obligations, as well as their limits and possible releases, particularly in the conflict between the public interest in clarification and the rights of third parties.
Starting Point: Investigations and Protective Obligations
Following the spectacular collapse of Wirecard AG and the associated criminal and regulatory investigations, the German Bundestag established a committee of inquiry to thoroughly examine events and responsibilities. During the evidence gathering, various witnesses were summoned, including individuals bound by special confidentiality obligations due to official or professional reasons – such as board members, compliance officers, or supervisory board members.
The central conflict here was the question of whether and to what extent an effective release from confidentiality by authorized bodies or entities, such as the board of directors of a company or an insolvency administrator, is possible and sufficient to justify the requested obligation to testify, thereby enabling testimony before the committee legally.
The Decision of the Federal Court of Justice
Balancing Right to Refuse Testimony and Duty to Clarify
In its decision, the BGH clearly stated that the fundamental right to refuse testimony for individuals obligated to silence under § 53 of the Code of Criminal Procedure (StPO) can be lifted under certain conditions. The condition is that the group of people bound to confidentiality receives an effective and legally compliant release. This release must be issued by the entity genuinely authorized to represent and release, such as the administratively or corporate-appointed representative body, the appointed insolvency administrator for insolvent companies, or any other competent bodies designated by the legislator.
Requirements for Effective Release
For a proper release from confidentiality, the following conditions must be met:
- The release must be executed by the currently responsible body or legally authorized entity; in the case of companies post-insolvency, this is typically the insolvency administrator.
- The declarations of release do not require any special form, as long as they are transparently and comprehensibly presented to the parliamentary committee of inquiry and can be documented and verified by it.
- If there is a proper release, the right to refuse testimony ceases; the release is effective.
Protection of Existing Individual Rights
The BGH simultaneously emphasizes that even with a release from confidentiality, other rights – especially data protection, personal rights, as well as any confidentiality orders under § 96 StPO and Article 10 of the Basic Law (GG) – must be respected. Thus, in criminal procedural and parliamentary investigations, there is no absolute obligation to disclose.
Concrete Implications in the Context of the Wirecard Committee
Significance for the Practice of Committees of Inquiry
The decision provides an important guide for practice: It will enable committees of inquiry to more frequently obtain information from witnesses originally bound by confidentiality, as long as clear and formal releases are present. At the same time, the precedence of the respective third parties’ rights deserving protection, which parliamentary inquiries are fundamentally bound to, remains.
Admissibility of Obtained Testimonies
In the specific case, the BGH confirmed that the release granted by the insolvency administrator and the current representatives of Wirecard AG was sufficient to effectively release witnesses from their confidentiality obligations. The testimonies gathered on this basis could thus be considered admissible, against which the objections raised by the witnesses did not prevail.
Evaluation and Legal Framework
The decision fits into the principles of the Code of Criminal Procedure and corporate law, concretizing the oversight powers and review obligations of special committees, as particularly formed after corporate scandals like Wirecard. It clarifies practice-relevant issues at the intersection of corporate insolvency, evidentiary laws, and data protection – setting standards for the transparency of clarification processes in economic criminal matters.
Reference to Sources and Ongoing Developments
It should be noted that the criminal and civil proceedings related to the Wirecard complex were still ongoing at the time of the publication of the BGH decision. The presumption of innocence for affected persons therefore explicitly remains. The presented content relates to the published decisions of the Federal Court of Justice (available at: https://urteile.news/BGH_StB-4320StB-4420-und-StB-4820_Entbindungen-von-der-Schweigepflicht-gegenueber-dem-Wirecard-Untersuchungsausschuss-wirksam~N29846).
For questions or uncertainties about testimony-related obligations, releases from confidentiality, or other aspects around company-related investigations, it might be helpful for affected parties and stakeholders to seek qualified legal advisory support. MTR Legal Attorneys possess extensive experience in complex corporate and capital market legal issues and are available as contacts if needed.
