Chancellor Olaf Scholz (SPD) must provide information about confidential statements as Federal Minister of Finance in the Cum-Ex affair. This was decided by the Berlin Administrative Court in summary proceedings by the Tagesspiegel against the Federal Chancellery (Az. VG 27 L 36/22). According to the court order, the government headquarters should disclose knowledge of a confidential so-called background discussion between Scholz and several journalists in September 2020 on the subject of illegal dividend transactions. For the first time, the Chancellery is obliged to provide information about previous official activities of an incumbent head of government within the federal government. The decision is not yet final, the Chancellery has lodged a complaint with the Berlin-Brandenburg Higher Administrative Court.
One of the participants in the conversation at the time, the investigative journalist Oliver Schröm, publicly accuses Scholz of having lied to him at the meeting. The Federal Chancellery has not yet confirmed the statements accused of Scholz. According to the government, the press has no right to be informed about Scholz’s previous activities as federal finance minister. Therefore, the Chancellery may refuse to provide the information requested about the process. In addition to Scholz, Head of the Chancellery Wolfgang Schmidt (SPD) also took part in the conversation in his capacity as Secretary of State for Finance.
The administrative court clearly opposed the government’s view in its decision: “It can currently be assumed that the information is actually available from the Federal Chancellery, even if this requires a query from the Federal Chancellor and the Federal Minister for Special Tasks/Head of the Federal Chancellery.” The change of office of the two politicians does not change the fact that the information in the sense of the case law of the Federal Administrative Court is currently available in the Federal Chancellery. Both Scholz and Schmidt are not employees who have left the company, and the authority affected by the right to information cannot be obliged to question them according to the case law of the highest court. Only the area of responsibility of the officials asked had changed after the Bundestag elections on September 26, 2021: “Both officials are no longer for the Federal Ministry of Finance, but for the Federal Chancellery, but continue to work for the Federal Republic of Germany”, the respondent of the procedure is.
The fact that Scholz only wanted the alleged statements made at the time about his state of knowledge before a meeting with managers from the Hamburg Warburg Bank for confidential use and not for the public is irrelevant: “The confidential nature of background discussions in itself excludes the right to information under press law the opinion of the respondent,” says the decision. The question of whether the right to information under press law is excluded depends solely on whether the requested disclosure of information conflicts with public or private interests that are worthy of protection. In this case, they are not recognizable. The court rejected further requests by the Tagesspiegel for information on how the background discussion in the Federal Ministry of Finance came about because there was no urgent need. A main procedure must be conducted for this.