Investigations in NRW: “Then Cum-Ex will silt up”

After research by WDR and “Süddeutsche Zeitung” are missing Cum-Ex investigators in the tax scandal. Ex-NRW Minister of Justice Biesenbach is now making serious allegations.

Düsseldorf in June 2022: Hendrik Wüst (CDU) and Mona Neubaur (Greens) appear in front of the press. They have just agreed on the first black-green coalition agreement in North Rhine-Westphalia. Germany’s biggest tax scandal also plays a role in the 148-page “Future Contract for North Rhine-Westphalia”. “We will resolutely fight and deal with offenses such as cum-ex/cum-cum,” the politicians promise. “We will clarify the role of the former WestLB in the cum-ex scandal.”

Nationwide, most of the cases of the largest German tax scandal in NRW are processed. Until 2012, bankers, consultants and stock traders had taxes refunded that nobody had ever paid – a brazen grab into the state coffers, in which the federal government was cheated out of more than ten billion euros in tax money. The Cologne public prosecutor’s office, where the cases in North Rhine-Westphalia are processed in a bundle, is currently investigating more than 1,500 suspects.

Positions currently not filled

On paper, there are 36 positions for Cum-Ex at the Cologne public prosecutor’s office. However, three positions are currently vacant. Three other employees are currently absent due to parental leave and maternity leave. Despite the highly complex procedures, nine of the 16 newly created positions were filled with employees who “are still very young,” according to the Ministry of Justice. With two exceptions, they had “neither experience in dealing with extensive commercial criminal cases nor prior knowledge of tax and banking law.”

The former NRW Minister of Justice Peter Biesenbach (CDU) now raises serious allegations in an interview with WDR. “My impression is that neither the head of the Cologne public prosecutor’s office nor his deputy have much interest in these proceedings, nor do they put their heart and soul into it.” During his term of office from 2017 to 2022, he literally had to force additional positions for Cum-Ex on the management of the Cologne public prosecutor’s office, “some of which were then not filled at all”.

Biesenbach even demands regulatory consequences. “If there isn’t really massive intervention here, Cum-Ex will peter out,” he says. “That would be a shame. It would be a shame for North Rhine-Westphalia and it would also be a shame for the judiciary in North Rhine-Westphalia.” Biesenbach expressly excludes the public prosecutors who work on the cases from his criticism.

Confronted with the allegations, the management of the Cologne public prosecutor’s office refers them to the Ministry of Justice. The ministry explains that the Cologne public prosecutor’s office is conducting the cum-ex proceedings with the necessary care and great commitment and, accordingly, with considerable success. Like his predecessor, Minister Limbach is paying particular attention to the subject. “The Ministry is examining to what extent (it) can provide the public prosecutor’s offices with further resources for the prosecution of white-collar crime, for example in cum-ex proceedings and asset confiscation.”

The acting Justice Minister Benjamin Limbach (Greens) also explained that, as in every public prosecutor’s office, one is subject to fluctuation. “However, we always manage to fill these positions as well, so I don’t see any stagnation in the investigations there, but we are trying to support the work of the public prosecutors to the best of our ability on the part of the judiciary.”

Problems with the West LB procedure

Apparently, not only the prosecutors, but also the investigators who are supposed to secure the evidence in the Cum-Ex scandal are lacking staff. In the proceedings against those who were once responsible for the former Landesbank West LB (today Portigon), no charges seem to be in sight even after seven years of the search. After research by WDR and “Süddeutsche Zeitung” (SZ), only two tax investigators are involved in the matter.

Specialists from the State Criminal Police Office or the police, who have the necessary experience in securing and evaluating e-mails and telecommunications, who conduct international investigations and who are practiced in conducting interrogations, are left out when investigating the West LB cause.

When asked why no detectives were deployed in the West-LB investigation, the Ministry of the Interior replied that neither the ministry nor the LKA had been told “that the extensive pool of specialists made available was not sufficient overall.” The Ministry of Justice admits “that investigations into such highly complex commercial criminal proceedings could be significantly accelerated if they were supported by experienced police forces.” You are in constant contact with the Ministry of the Interior.

Another billion in damage

According to calculations by the tax authorities, the once powerful Landesbank West LB caused damage to the state of around one billion euros with cum-ex transactions. The now insolvent bank, whose supervisory board always included the state finance minister, was a well-known player in the cum-ex scene until 2007. The question of who is responsible for a state-owned bank using the state’s tax pots is still unresolved.

One thing is certain: the determination of the Causa West LB is characterized by bankruptcies, bad luck and breakdowns. As early as 2007, a whistleblower contacted the banking supervisory authority BaFin. But the warnings went unheeded. Only when the later SPD finance minister Norbert Walter-Borjans bought a “tax CD” on Cum-Ex with taxpayers’ money did the tax investigators get on the trail. In 2016, investigations were initiated at the Düsseldorf public prosecutor’s office.

But apparently there were disagreements. At least that’s how the former Justice Minister Biesenbach describes it. “Well, I heard from Düsseldorf that they thought the investigation was over. The people of Cologne saw it very differently, because they simply thought they had to investigate more broadly.” Finally, the procedure was then transferred to Cologne. Since then, the investigators have been trying to work through the case with the sparse material and few staff. Outcome: uncertain. The public prosecutor’s office in Düsseldorf did not want to comment on the allegations.

Lack of legal certainty

The slow criminal proceedings are also a problem for the boss of the West LB successor company Portigon, Frank Seyfert. For example, if he wants to hold former managers liable for the cum-ex damage. “The difficulty is that, since the criminal proceedings have not been completed or have not even been initiated, there are any indications at all that legal proceedings against third parties can be initiated,” says Seyfert.

In Bonn, meanwhile, the president of the district court, Stefan Weismann, is wondering how things will continue. He is having a new courthouse with three large halls built especially for Cum-Ex in Siegburg. When and whether the expected hundreds of charges will reach him seems unclear these days.