A passionately committed prosecutor resigns and forgoes her civil service status and opportunities as an investigator. She believes that with an NGO she can do more against billionaire fraudsters in the economy than in the judiciary. If this alarm signal is ignored, the rule of law is in danger.
The Cum-Ex scandal is the worst tax fraud in German history, a robbery of billions at the expense of the state treasury, i.e. the taxpayer. It has elements of organized crime. In the trades, crooks moved stocks back and forth around the day the decision was made as to who was entitled to a dividend or not. Tax offices then refunded capital gains taxes to bankers, consultants, lawyers and stock traders that had never been paid. Investigators found evidence of interference in politics to ensure that the appearance of serious business activity was maintained. It was only in 2012, a decade after the first officially registered indications of the machinations, that a federal government put a stop to the Cum-Ex madness.
2012 was also the year in which the Cologne public prosecutor Anne Brorhilker began to investigate the first suspected cases. She headed the dedicated department that dealt with the highly complex matter, which is extremely difficult to understand, which is why it takes years before charges are brought. Brorhilker brought light into the darkness. Her team managed to convince the accused to act as key witnesses – a milestone in the investigation and punishment of the scandal. One of her demonstrations led to the first legally binding cum-ex verdict in 2019.
But instead of kneeling before her in awe, superiors and employers in North Rhine-Westphalia repeatedly placed stones at the lawyer’s feet and managed to frustrate her – with the result that Brorhilker resigned. Her reasoning is particularly bitter. The “most powerful public prosecutor in Germany”, as the “FAZ” called her, is giving up her highly respected job, civil servant status and pension entitlements and switching to the citizens’ movement Finanzwende because she believes that she can do more against billion-dollar fraudsters in the economy with a civil society association than in the judicial system. So she currently believes that the state has less power than an NGO. This is both a blatant indictment of the German state and an unmistakable alarm signal for politicians.
The fact that Brorhilker actually sees her termination as an emergency call was shown by the fact that she, who hardly appeared in public, announced her termination in a WDR interview. Even if she didn’t spew venom and bile, her frustration was palpable. She explained “how difficult it is to get enough support for the Cum-Ex investigation” – throughout the entire investigation period. This statement alone must ring in the ears of politicians who are responsible for the personnel and material resources of the judiciary, even if the public prosecutor emphasized: “That was not because the authorities or politicians did not understand the issue.”
“With a lot of money and good contacts”
That would be even nicer if it hadn’t been understood, as in Germany alone there is an estimated twelve billion euros that taxpayers have presumably been cheated out of. How insightful the politicians really were – and one doesn’t even have to remind us of Chancellor Olaf Scholz’s incredible lapses in memory – is open to debate. It was only (!) made public before the Bonn Regional Court through questioning witnesses that the Federal Ministry of Finance had a list of 566 potential cum-ex fraud participants from funds, banks, financial companies and foundations since 2009. However, it was only sent to the senior public prosecutor in 2020 – at the formal request of her authority. What good did that do if the statute of limitations was already imminent?
Brorhilker lacked support. It is known that as a result of her demands and – almost always internally – criticism, she has more than just fans in the North Rhine-Westphalia state government made up of the CDU and the Greens. Justice Minister Benjamin Limbach, a Green, was at odds with her. He only jumped to the investigator’s side last September when he could no longer do anything else because the public pressure was huge after “Manager Magazin” made it public: the main department headed by Brorhilker should be divided up, which was rightly called “disempowerment” of the was rated as a public prosecutor. She probably would have had to give up half of her people and cases.
After all: Limbach corrected himself, hired four new prosecutors, did not change anything in the structure and paved the way for closer cooperation with other authorities. Brorhilker praised the Minister of Justice for this. But Limbach is likely to have played a significant role in her switching to Finanzwende, which – as the irony of history would have it – was founded in 2018 by the former Bundestag member Gerhard Schick, who, like Limbach, is involved with the Greens.
In a friendly tone, but harsh in his statement, Brorhilker acknowledged the failure of politics. She generally complained on WDR: “It’s often about perpetrators with a lot of money and good contacts, and they encounter a weak judiciary.” But she also criticized the general situation in Germany, where experts like her are only listened to when it suits politics and gets votes – otherwise everything stays as it is. Brorhilker’s wish to combine investigations was ignored, which has to do with the federal structures, which the public prosecutor criticizes: “There remains a fragmentation of responsibilities.”
“So-called deals”
“And it wasn’t the case that politics had a focus on it,” she said. In short: “I am not at all satisfied with the way financial crime is prosecuted in Germany.” Even more dramatic are Brorhilker’s statements, which are grist for the mill of all those who consider the Federal Republic to be an unjust country in which wealthy people rob the state treasury and, if they are caught, get away with little punishment and buy their way out of proceedings can. Only people with money or solvent companies in the background can afford it. Something like this can destroy trust in the rule of law.
At least that’s what the prosecutor believes. And he believes that agreements outside the courtroom are generally wrong in cases of this magnitude. “With so-called deals, you usually don’t get the full amount back, so if it comes up, sometimes half, but definitely not the full amount. And that’s absurd, why should we let ourselves be left out like a Christmas goose.” The investigator said: “As a tax evader, especially if you have a big goal, you get off much better than social welfare fraudsters in Germany – and that is again an expression of the saying: You catch the little ones, you let the big ones go. That’s simply unfair. “
In the NGO, she can now devote herself entirely to combating financial crime without the strict requirements of civil service law and superiors who thwart her plans. She will soon realize that this is anything but easy. In any case, the investigator deserves respect not only because she forgoes a lot of money, but above all for her courage and her wake-up call. Even if it fades away in federal and state politics and the state doesn’t put more money into its judicial system – better pay! – invested, the German constitutional state will continue to march towards total overload.