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As a witness, Transport Minister Andreas Scheuer (CSU) was invited to the Parliamentary Commission of Inquiry on failed car tolls on Thursday. It is not yet clear whether he will have anything to say, as the Union parliamentary group apparently wants to put former Secretary of State for Transport Gerhard Schulz on the witness list for a short time. That would possibly postpone Scheuer’s appearance until evening, or make it completely impossible this Thursday.
But if the opposition has its way, Scheuer should have been in the dock by now.
Because there are serious suspicions in the room: it is said that he violated the budget and procurement law and lied to parliament. This is suggested by documents SPIEGEL last reported on here.
For taxpayers, the financial risk of the toll adventure is particularly vexing. Scheuer took an incalculable risk and signed the operator’s contract before the ruling of the Court of Justice of the European Communities (ECJ) was reached.
When judges in Luxembourg declared Scheuer’s project contrary to European law in the summer of 2019, the minister unceremoniously fired the operating company Autoticket, which consists of Kapsch TrafficCom and CTS Eventim. Companies are now demanding 560 million euros from the State. The ministry rejected the accusations as unfounded.
Scheuer’s hasty reaction
But now it turns out that the legal advisers themselves had huge doubts about whether Scheuer was acting legally clean. His clumsy demeanor could even have played the game of business. In any case, this is suggested by confidential documents, the content of which is available to SPIEGEL and Bayerischer Rundfunk (BR). The emails and working documents come from the dramatic hours and days after the ECJ ruling on June 18, 2019.
The Minister of Transport decided that same night to terminate the contract with the operating company. Obviously personally, as an email from a Greenberg Traurig consulting attorney at 8:20 pm shows: “Min wants to quit in two hours.”
Greenberg Traurig’s attorneys were not at all thrilled with the hasty pace with which Scheuer had decided to resign. “If someone thinks they have to give up the Wild West style quickly, then with a not insignificant residual stain,” warned one of the lawyers in an email on the afternoon of the verdict.
Obviously, the ministry had asked how much damage could be claimed from the operators. But apparently it couldn’t be determined that quickly. Annoyed, the lawyer suggested to his colleague at the law firm that they “leave the dilemma in the hands of those responsible for the numbers.”
Which he apparently meant: the Ministry should take care of the mess it had caused with the early signing of the toll contract.
Presumed poor performance of operating companies
But Scheuer didn’t want to wait. And the Luxembourg ruling should not be the main reason for terminating the contract. The lawyers obeyed the wishes of their client. He wrote a termination notice that first referred to the alleged poor performance of the operating companies in planning and only later to the ECJ ruling.
The consortium around “Kapsch TrafficCom” and “CTS Eventim” had been terminated for “failing to submit detailed planning documentation that could be published in time,” according to the letter dated June 18.
Later, the minister publicly repeated the accusations against the operating companies. The submission of the planning documents was “unsuccessful despite two additional deadlines set by the client,” the minister said later, complaining: “The documents repeatedly submitted showed considerable deficits.” With this argument he apparently tried to evade the claims of the operating companies.
But there are serious doubts about this strategy, as SPIEGEL has reported in the past. On the afternoon of the ECJ ruling, the project manager for the Federal Motor Transport Authority (KBA) had sent an email to his colleague at Autoticket. It was a problem in the detailed planning: The “pre-formulated text modules are in order and in accordance with what was agreed at the meeting on 06/13/2019,” the official wrote. It seemed like you were on the right track. The external evaluation of a test company in Aachen and the ministry’s own risk assessment also relieved the operator.
A catastrophic sentence for Scheuer
New documents confirm the doubts. The day after the termination, at 4:01 pm, an official from the Kraftfahrt-Bundesamt-based toll planning group wrote that the employees of the operating company were obviously trying to correct any deficiencies in the planning. The operator has “thus far also demonstrated” that it “adheres to proper continuation and presentation” of precisely such detailed planning documentation. You were given deadlines for this that have not yet expired, according to the email.
The official also noted that there was a clause in the contract that provided for a “so-called payback period” in the event of termination, such as deficiencies in the detailed planning documentation. It states that if there is a reason for termination, the parties are given eight weeks to remedy the irregularities.
Of course, Greenberg Traurig’s lawyers, who were the creators of the toll contract, were also familiar with this passage. On the same day as the KBA official, a lawyer sent her colleague a working document that read: Although several major deficits were described. “But they were relatively easy and probably quick to fix, so termination for this reason could be disproportionate.”
His colleague responded to this email three hours later. This is a catastrophic sentence for Scheuer. It reads: “Formally, when the client declared its termination on June 19, 2019, it did not meet the requirement of establishing an eight-week grace period.” This judgment, with which the lawyer was able to shake Scheuer’s argument to the ground, can also be found in the final version, which was sent to the responsible official at Scheuer’s ministry 45 minutes after midnight.
Friendly deal blocked
The hasty dismissal on the grounds that the operators had worked poorly will now also be a topic in Thursday’s commission of inquiry. This will be followed by three senior managers of the operator consortium, including the directors of the shareholder companies: Georg Kapsch from “Kapsch TrafficCom” and Klaus-Peter Schulenberg from “CTS Eventim”.
In a conversation the day after the ECJ ruling on the ministry, you harshly criticized the minister’s approach. According to a protocol subsequently made by two managers, Schulenberg said: The firing for poor performance was “unacceptable.” Another coach called Scheuer’s strategy “foul play.”
It is clear from the minutes that Scheuer had completely blocked an amicable settlement with his reason for termination, as it was put into play by the operators.
It would have been conceivable to let the contract continue and use the planning that had been developed up to that point for a new approach to tolling in the future. This was also discussed in the June 19 conversation. Scheuer is said to have ruled it out. The operator’s protocol establishes that the toll must be adjusted in such a way that greater consideration is given to ecological aspects, which were ruled out “for political reasons.” Scheuer “found no support for an adjustment of the system at the June 19 cabinet meeting,” they say.
Rather, Scheuer was based on confrontation, albeit with a legally highly questionable strategy.
The shareholders of the toll consortium now want to fight for their claim for 560 million euros in arbitration. The newly emerged warnings from Scheuer’s attorneys and officials could be his undoing in these legal proceedings and cost taxpayers dearly.
So far, the Ministry of Transport has left a request from SPIEGEL and BR unanswered.
Green transport politician Oliver Krischer told SPIEGEL: “It is becoming increasingly clear that the increased amount of damages of more than 500 million euros is due to the termination of the contracts because the minister hastily canceled them.” His party colleague Stephan Kühn, chairman of the Greens on the inquiry commission, again called for Scheuer’s resignation.
