It’s been almost a quarter of a year since the Union faction made a big announcement. At that time, three CDU MPs came to the federal press conference to announce that there would be a new committee of inquiry in the Bundestag. He should bear the name “Scholz-Warburg tax affair” and not only deal with the dubious cum-ex transactions of the Hamburg Warburg Bank, but also with the behavior of Olaf Scholz. That was on April 4th – but the committee of inquiry still doesn’t exist. Which is why the question arises who is responsible for this. After all, the Cum-Ex affair is about one of the biggest tax scandals in post-war German history.
The Union faction has long since submitted the application for the establishment of the committee. It also has the necessary number of votes: at least 25 percent of MPs. The right to request a committee of inquiry is one of the most important minority rights – it is in the Basic Law. But the SPD thinks that the Union is about “pure propaganda” against Scholz. And she is of the opinion that parts of the investigation mandate desired by the Union are not covered by the constitution.
The traffic light coalition has therefore so far blocked the appointment of the committee – also to the chagrin of the left. “The FDP and the Greens, who were still in favor of enlightenment themselves in the opposition, are jumping in front of the chancellor for the sake of a coalition peace,” criticizes Left-wing MP Christian Görke.
What role did Scholz play in the tax matter?
There was an expert hearing on the subject last week. And in fact, almost all lawyers had concerns, at least with parts of the list of questions from the Union faction. However, one should not be fooled by the majorities. Because the experts are proposed by the parliamentary groups. The three traffic light factions have an advantage over the Union. And the left faction had not named an expert. “After weeks of haggling, the hearing was finally scheduled at an unusually short notice,” said Görke from the left justifying himself. It is therefore not crucial to look at the majority situation, but to look at the arguments.
“The actions of the Free and Hanseatic City of Hamburg under the responsibility of the then First Mayor (…) Olaf Scholz in the tax affair MM Warburg & Co Bank raises serious questions,” says the Union faction’s application for the appointment of the committee of inquiry. Several questions in the application are aimed at why “Hamburg” dealt with tax claims against Warburg Bank in a certain way in 2016 and 2017. Scholz had met the then Warburg boss Christian Olearius three times, who wanted political support given his problems with the tax office. And at the end of 2016, the Hamburg tax office waived a tax reclaim of 47 million against the bank.
Almost a year later, however, the Federal Ministry of Finance, then still headed by Wolfgang Schäuble (CDU), issued an instruction according to which the tax authorities had to demand the money. Which then happened. Scholz denies any influence on the tax procedure, but at the same time refers to gaps in his memory of the meetings with Olearius, which he only gradually admitted.
There are doubts about the admissibility of the committee because it is about events in Hamburg
In the hearing, Professor Christoph Möllers from Berlin’s Humboldt University now explained that the actions of a federal government that can be examined by a committee of inquiry in the Bundestag include “the actions of the Federal Chancellor in his official capacity”. The earlier activities of a chancellor in a state government are not subject to this, however, because “the control of a state government does not fall within the remit of the Bundestag”.
Professor Heiko Sauer from the University of Bonn emphasized that the Union’s application for appointment was “mainly constitutionally inadmissible because it was essentially aimed at directly investigating events in the Free and Hanseatic City of Hamburg and the actions of those responsible for politics there”. The fact that “the financial interests of the federal government are also affected does not change the result”.
On the other hand, the former head of department, Paul Faith, said he had no such constitutional concerns. “An effective right of inquiry requires that the investigative committee can also make statements about the behavior of state authorities.” Hamburg’s statehood will not be affected.
But what’s next? Johannes Fechner, legal counsel for the SPD parliamentary group, says that the Union now sees “that the application it initially submitted was largely unconstitutional.” The Union had “submitted 13 amendments for its 19-question application, which we will examine for their constitutionality”. According to his preliminary assessment, however, some of these are only cosmetic improvements to the union application, which are not yet sufficient for a constitutional mandate.
The CDU makes it clear: it is not available for a “pseudo” committee
Union parliamentary group leader Mathias Middelberg – he was one of the three MPs who appeared at the federal press conference in early April – vehemently contradicts this. Of course, “a federal state should not be violated by the investigation in its statehood,” he says. “But that is certainly not the case when a state administration makes files available on a specific individual case and individual state employees are questioned as witnesses.”
Middelberg confirms that the Union faction has “revised some points” in its application. But he also makes it clear: “There will be no new application or changes to the core issue of our investigation. If the traffic light groups do not accept this revised investigation order, we would call the Federal Constitutional Court as soon as possible.” We are not available for a “pseudo investigative committee” that is no longer allowed to investigate the core of the matter, namely the reasons for the original “non-enforcement of the tax claims against the Warburg Bank”.
It is therefore quite possible that in the end the Federal Constitutional Court will have to decide the dispute. In any case, the tax case will be further investigated. The Cologne public prosecutor responsible for the Cum-Ex investigation accuses Olearius of tax evasion in particularly serious cases. The district court in Bonn approved the charges, and the trial is scheduled to start in September. And there, too, Scholz’s role could become an issue again.