Long-time CSU member Georg Nüßlein has lost his mandate in the Bundestag because of the mask affair, but the financial damage to him is limited. Since the Munich Higher Regional Court (OLG) does not consider Nüßlein’s fee for mask deals to be a criminal offense, the ex-politician gets back the 660,000 euros that he has since been seized. And he should now be entitled to the 540,000 euros he was supposed to get for mediating mask purchases by the state before these deals became known and turned into a scandal.
1.2 million euros, which corresponds to the income of a simple MP, i.e. without allowances, in ten years in the Bundestag. And Nüßlein presumably has nothing to fear from his former employer, the parliament, i.e. the people. In Paragraph 44a of the Members’ Act there are rules that seem to fit perfectly with the Nüßlein case. There it says, among other things, that a “remunerated representation of interests for third parties vis-à-vis … the federal government” is inadmissible. And whoever does it as a member of parliament has to pay whatever comes out of it to the state treasury.
That could fit in well with the findings of the Munich Public Prosecutor’s Office. The investigators accuse Nüßlein and the member of the state parliament, Alfred Sauter, who also comes from Swabia, for using their influence and their position as parliamentarians “against the promise of profit sharing” to persuade federal and state authorities to buy corona protective masks. That sounds as if Paragraph 44a of the Deputies Act applies.
Claudia Roth thinks all of this is “unbelievable”
But apart from the fact that Nüßlein and Sauter deny all allegations: The 44a is simply too late. The rules, which could cost Nüßlein 1.2 million euros, were only introduced a month ago, after the mask affairs. And since laws are normally not allowed to be applied retrospectively, Nüßlein should get away with this too. As was the case with the Munich Public Prosecutor’s Office, which suspected the ex-CSU politician of having allowed himself to be bribed as a member of parliament. However, the relevant paragraph 108e in the Criminal Code is so narrow that it does not apply either. At least in the opinion of the Munich Higher Regional Court.
Claudia Roth, Bavarian member of the Bundestag for the Greens and Vice President of Parliament, thinks all of this is “unbelievable”. The damage to the credibility of politics is “huge, especially in times when many people suffer and suffer losses”. Doing business with the plight of the people is forbidden.
But what is morally prohibited and what is legally prohibited are often two pairs of boots. Nonetheless, the anti-corruption regulations for members of parliament are to be tightened. So Thursday, the day of the turning point by the OLG, was also a day of the announced energy. Alexander Hold, Landtag Vice President of the CSU coalition partner Free Voters, announced: “We are making immoral business conduct by MPs impossible.” Next week in the legal committee of the state parliament, on the one hand, a draft of the Bavarian parliamentary law is on the agenda from the coalition groups as well as the SPD, Greens and FDP. The planned rules, says Hold, “remove any ground from the beginning of the unfair amalgamation between parliamentary mandate and profiteering.”
In addition, there is a motion in the committee from the CSU and FW for a fundamental reform of the criminal offense of bribery of parliamentarians (Paragraph 108e, Criminal Code), which is expected to lead to a Federal Council initiative. “When there is a huge gap between criminality and decency, it is time to change criminality,” says Judge Alexander Hold. The “outcry in the population” after Thursday’s decision was “completely right”. The application relies on reformulations of the element of the offense for the purpose of better evidence of violations. Hold hopes that the paragraph with the Bavarian proposal will then apply in cases like Sauter and Nüßlein. But he is also open to a different way, different formulations that he himself “does not have in the quiver”. Quasi: a case for legal scholars, ideas welcome!
Sauter’s return to the parliamentary group considers Kreuzer to be “excluded”
One of the best witnesses to how inadequate the federal law against the bribery of parliamentarians has so far been sitting at Gauweiler & Sauter, of all places. At the joint law firm of the two CSU friends Peter Gauweiler and Alfred Sauter. There the former presiding judge at the Federal Court of Justice (BGH) Thomas Fischer works as Of Councel, as a legal advisor. In 2014 the eloquent fisherman wrote an essay for the Time classified the then new bribery paragraph 108e in the penal code as “cheese of inferior quality”: “A lot of air, little substance. The holes make up 95 percent of the volume.”
Of course, Fischer could not have foreseen at the time what role Nüßlein and Sauter would play in mask shops years later. And the bribe scenarios described by Fischer at the time have nothing to do with the Nüßlein and Sauter cases. But it is enlightening what Fischer wrote as a BGH judge in 2014. “When the wolves make laws against poaching, the sheep have nothing to laugh about.” the Time Fischer’s guest contribution summarized as follows: Only an MP who acts extremely stupid can be punished at all.
Nüßlein and Sauter didn’t work stupidly, both from a business and legal point of view. But their political careers are over. Nüßlein resigned from the CSU and resigned from the Bundestag after the CSU no longer installed him. And for Sauter, who had to leave the CSU parliamentary group in the state parliament under pressure from within the party, there is probably no return. CSU parliamentary group leader Thomas Kreuzer said that he considered a return to the parliamentary group to be “impossible”. The decision of the OLG “does not change anything for us about the fact that Alfred Sauter needed his position as a mandate holder in order to enrich himself personally in the pandemic”. This behavior “damaged us as a parliamentary group” and the reputation of the state parliament “very much”.