Chancellor Olaf Scholz (SPD) does not have to provide any information about his role as Federal Minister of Finance in the Cum-Ex affair. The Higher Administrative Court (OVG) Berlin-Brandenburg ruled that based on the right to information from the press, the Chancellery could not be required to question employees or executives about events “that have no connection whatsoever to the official processes of the agency required to provide information” (case no.: OVG 6 pages 36/22).
The Higher Administrative Court thus changed an approving decision of the Administrative Court, which had required Scholz and the Chancellery to provide the relevant information (Ref.: VG 27 L 36/22).
The decision is final and was made in an urgent procedure by the Tagesspiegel against the government headquarters. The occasion was the clarification of allegations by journalist Oliver Schröm against Scholz.
Schröm, author of the book “Die Cum-Ex-Files”, claimed in an ARD interview that he had been “personally lied to” by Scholz in September 2020 in a confidential so-called background discussion at the Ministry of Finance.
According to the journalist, Scholz is said to have untruthfully claimed at the time that before a meeting with managers at Hamburg’s Warburg Bank in 2016, he had known nothing about criminal investigations against them for cum-ex transactions.
In the case of the illegal share deals, banks and investors actually had the state reimburse them for unpaid capital gains tax. The inquiries from the daily mirror were aimed at examining Schröm’s account. The Cologne public prosecutor recently brought charges against one of the Warburg bankers with whom Scholz met at the time.
The administrative court had ruled, with recourse to the case law of the Federal Administrative Court, that the relevant information about the background discussion at the time was available as official knowledge from Scholz from his previous government activity as finance minister in the Federal Chancellery.
On the other hand, the Chancellery lodged a complaint with the Higher Administrative Court, which now interprets the same case law differently: According to the judging 6th Senate, information would only be available in the form of official knowledge at an authority if this knowledge was obtained in the course of an activity for the agency responsible for providing information had been.
The journalistic right to information justifies “no general right to ask questions to heads of authorities or other persons working at the reporting agency with regard to topics that are related to a previous official activity of these persons”.
Questions to the Federal Ministry of Finance on the matter also do not have to be answered because Scholz no longer works there. There are no written documents. For the time being, the Federal Administrative Court cannot clarify whether the resulting lack of transparency is to be accepted. It would be necessary to conduct a so-called main proceedings, which extends over several years.
The right of the press to obtain information directly from the constitution against federal authorities, derived from the constitutionally guaranteed freedom of the press, is repeatedly the subject of legal disputes. The coalition wants to create a legal basis for this that could clearly define its scope for government activities in changing offices.
