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Former mayor, now chancellor: SPD politician Olaf Scholz
Photo: Andreas Gora/POOL/EPA
Gerhard Strate, criminal defense lawyer and member of the Constitutional Law Committee of the Federal Bar Association, has filed criminal charges with the Hamburg Attorney General against Chancellor Olaf Scholz and the First Mayor of the Hanseatic city, Peter Tschentscher.
It is about “assistance in tax evasion”, in the Scholz case also about the accusation of false unsworn testimony.
SPIEGEL has received the 36-page ad.
The two SPD politicians, then mayor and finance senator, are said to have failed to reclaim 47 million euros from the Hamburg private bank MM Warburg & Co. in 2016.
The sum had been reimbursed to the bank by the tax office in connection with so-called cum-ex transactions.
Cum-ex deals cheated the state out of billions of euros altogether by tricking it into refunding capital gains taxes that were never paid.
In Hamburg, an investigative committee in the citizenship deals with the affair about the Warburg Bank.
Tschentscher and Scholz have always emphasized that they had no influence on the matter.
The Hamburg public prosecutor had already received several complaints against Tschentscher and Scholz.
So far, the authorities have seen no reason to investigate.
Last year, the Federal Court of Justice described cum-ex transactions as illegal.
The Bonn Regional Court has already sentenced two former Warburg bankers to several years in prison because they were involved in Cum-Ex.
In 2016, the Hamburg tax office for large companies waived the originally planned reclaim of the millions paid to Warburg.
At the time, the officials assumed that this decision would mean that the matter would become statute-barred.
Christian Olearius, chairman of the bank's supervisory board, had previously made two appearances with the then mayor Scholz to make his own position clear.
The bank argued at the time that Warburg had relied on a partner bank involved in the deal to pay the capital gains tax due.
Moreover, a change in the tax assessments would possibly lead to the immediate collapse of the Warburg Group.
Strate now writes that at the end of 2016 "the criminal embedding of these businesses" was already "obvious".
Olearius' argument that the partner bank was relied on for tax purposes could "only arouse incredulous amazement."
After all, in its tax return, the bank "claimed that the capital gains tax (...) was actually paid", although it had "no knowledge whatsoever" about it.
Nevertheless, the then Senator for Finance, Tschentscher, "acknowledged and approved" the decision not to reclaim the wrongly refunded capital gains tax.
His argument, later put forward in the Hamburg Parliament, that the Senate did not influence the decision politically in any way, but rather let the tax offices "do their work in accordance with the law", sounds "pleasing", but has "rightly and legally Nothing to do".
According to Strate, according to the Hamburg state constitution, the Senate is not only the state government, but also the administrative head.
It follows that the finance senator is responsible for the administrative and technical supervision of the individual tax offices and is "appointed and authorized" to "prevent illegal activity if he becomes aware of it".
That is why Tschentscher could "by no means withdraw as a politician from the factual processes in the financial administration".
In April 2021, Olaf Scholz testified before the citizenship investigative committee on the Cum-Ex tax money affair that he had no memory of his talks with Warburg banker Olearius.
According to Strate, Scholz has confirmed this around 40 times.
It goes on to say: "When asked whether the fate of the Warburg Bank was discussed at any preliminary Senate meeting," Scholz said, "he doesn't remember it at all."
This statement, according to Strate categorically, "is false."
After all, Scholz was instructed by a “paper from the economic authority” to prepare for a meeting with the Warburg supervisory board chairman.
In the first line, cum-ex transactions were mentioned as a "possible point of contact".
The paper also referred to indications that the Warburg-Bank was possibly "involved in criminal stock transactions" - and to a search by the Cologne public prosecutor's office at the bank's Hamburg headquarters.
CDU politician attacks Scholz
Against this background, the memory gaps of the current chancellor are “not remotely credible”.
Strate's conclusion: "A complete lack of memory - as Olaf Scholz claims for himself - is a phenomenon that is occasionally diagnosed in testimony and memory psychology only in the context of a so-called post-traumatic stress disorder.
There's no evidence of that here."
The CDU politician Richard Seelmaecker, chairman of his parliamentary group in the committee of inquiry, told SPIEGEL: "The criminal complaint is not surprising."
In addition, it is clear: "We have an unbelievable Federal Chancellor." If the public prosecutor sees "sufficient suspicion", a Federal Chancellor would be in the dock.
»That would be an inglorious novelty in Germany.«
The Warburg Bank has now had to repay more than 170 million euros for cum-ex transactions over several years.
