The German Reichstag in Berlin (Source:Wikimedia Commons/MaryG90/https://creativecommons.org/licenses/by-sa/3.0/deed.en)

Stephan Harbarth, head of the Federal Constitutional Court in Germany, was himself elected by politicians and is still carrying his party card. Meanwhile, he is complaining about… the politicization of courts in Poland

Cezary Gmyz from Berlin

Nein – snarled the president of the Federal Constitutional Court in Germany, Stephan Harbarth, at Die Welt journalist Tim Röhn. The head of the most important German court had reasons to be upset. A few weeks earlier, Röhn revealed that the dinner for members of both chambers of the Constitutional Court hosted by Chancellor Angela Merkel on June 30th, did not solely consist of an exchange of complements and delicious food. Quite the opposite – the topic of discussions at the table concerned the case law of the Tribunal in matters of direct interest to the head of the German government. More specifically, it was about the judgment on Eurobonds, which recognized the primacy of German law over EU law in this matter and the so-called corona safety brake [a package of legislative solutions giving the government the right to implement restrictions throughout the republic – the German tribunal has already decided that this is in line with the German constitution].

If we were to compare this situation to an ordinary criminal trial, we would have to imagine a scenario in which the presiding judge discusses the details of a sentence that is yet to be issued over dinner with the defendant. The potentially explosive nature of this meeting was well known.

The memo, which Röhn discovered, clearly indicated that Kanzleramt officials expected a media storm if the contents of the discussion were disclosed to the public. He was right – the disclosure of the existence of the memo caused a stir and raised questions about the independence of the German Tribunal. So the journalist sent to Harbarth additional questions, and having received no answers to any of them, he decided to go to another Harbarth dinner and ask them in person. When Harbarth finished enjoying the shellfish and turbot fillet, just before the champagne mousse was served for dessert, the journalist approached the President of the Tribunal asking for an interview now or at a later date. It was then that he heard “nein” three times. Harbarth turned on his heel and walked away. During the speech for the assembled politicians and businessmen, he did not fail to attack the alleged politicization of the judiciary in Poland. If this is not hypocrisy, then what is?

The journalist of Die Welt, reporting on the meeting, noted: “Harbarth, a former CDU MP, sounded like a Christian Democrat. Nice appearance, elegant, accessible, articulate, open to guests’ questions. The allegations of bias over the corona policy [i.e., the pandemic response – ed.] were put in the background that evening”.

I would like to add that Harbarth not only sounded like a politician. He remained a politician. The point is that German judges, unlike Polish judges, are not required to be apolitical. Harbarth, after resigning from his position as an elected representative in the Bundestag, he did not renounce his party card. And he is by no means an exception in Germany. Many of his predecessors in this position also carried party cards, as did the vast majority of judges in Germany. Even if they do not have a party ID, they must have a party recommendation if they wish to have a career in the judiciary.

“Dear Angela”

It should be added that Harbarth is a completely unique figure in this respect. He was not a rank-and-file member of the Christian Democrats. He was at the very core of the decision-making power in Germany. And he remains in it to this day. As revealed by the weekly “Der Spiegel”, in the letter in which Harbarth thanked Merkel for the invitation, he first addressed her officially (“Dear Madam Federal Chancellor”), then subsequently he wrote underneath – by hand, carefully calligraphed: “Dear Angela” and at the end also placed a handwritten signature, “Your Stephan”.

It is worth following the career of Stephan Harbarth, because he is an excellent example of the close ties between the world of politics, the judiciary, and large businesses. Let’s start with the most important issue – Stephan Harbarth (just like the former Chief Justice of the Polish Supreme Court, Małgorzata Gersdorf), after becoming a judge, and soon after the president of the most important tribunal in Germany, had no experience in adjudicating in even the smallest German court. His election took place in the same manner as the elections in all courts in Germany without exception, strictly political, without even the slightest involvement of the judiciary. One could say that Germany – or rather its elite – believe that the judiciary is too serious an institution to be shaped by judges. Incidentally, this also applies to the prosecutor’s office, the police, and the army – soldiers, investigators, and policemen, unlike Poland, are not prohibited from belonging to political parties. It is no secret to anyone in Germany that in order to make a career in these bodies, it pays to belong to a party.

Naturally, Harbarth cannot be accused of being a legal dilettante. He graduated from one of the most prestigious law faculties at the University of Heidelberg. He has also completed studies at the famous Yale Law School and a habilitation. He was also a partner in one of the most famous German law firms Schilling, Zutt & Anschütz in Mannheim, which for some time was part of the global law firm Shearman & Sterling LPP.

It cannot be said that Harbarth’s activities as a lawyer have not aroused any controversy. Especially from the moment when he began to exercise the mandate of a member of the Bundestag, and at the peak of his political career, he became the vice-chairman of the Christian Democrats’ parliamentary caucus.

Two elements are of particular importance. The first is the enormous amount of money he received as a lawyer and an MP at the same time. It is estimated that his income from working as a lawyer could reach up to one million euros per year. His critics argue that while he exercised his parliamentary mandate, his main activity was in fact legal services. In the opinion of many, this is in violation of the law on the performance of the mandate of a deputy. The case went to court. The latter, however, did not share the applicants’ doubts, considering the complaint to be unfounded, and refused to consider it. There is only one problem – the decision was issued by… the Federal Constitutional Court, which was adjudicating over its very president. Therefore, it is difficult to consider the court’s decision to be impartial. Although, from a formal point of view, everything was fine. Since then, the same court in Karlsruhe has regularly rejected numerous complaints against Harbarth alleging the absence of impartiality and independence on his part.

Two scandals

The second issue is that the law firms Harbarth worked for are involved in two of the biggest scandals in Germany. In fact, these scandals have a global dimension.

One of them is the Cum-Ex affair. At the time when Shearman & Sterling LPP was developing a model that would drain billions from the federal budget, Harbarth was its managing director. The mechanism of this scandal was similar to that of VAT scandals known in Poland. It concerned multidimensional tax refunds obtained thanks to legal and financial tricks.

Another case in which law firms were involved is known as the Diesel-Affäre. Its mechanism was to artificially reduce the amount of harmful substances in cars produced by the largest German car manufacturers. Its disclosure resulted in a sharp decline in the value of the shares of these companies and enormous losses for their shareholders. When the news of Harbarth’s election to the constitutional court broke out, a well-known Green finance expert, Gerhard Schick, commented sarcastically: “Congratulations to Volkswagen, a smart move”.

There are further concerns about Harbarth’s career. For example, the circumstances of his appointment to the Constitutional Tribunal. It is quite commonly believed that the honorary doctorate he received from his alma mater in Heidelberg was a springboard to the judge’s seat. Perhaps it should not be at all surprising that a university wants to pave the way for its outstanding graduate, if not for the fact that it created a foundation together with the company in which he worked. The fact that the university refused to disclose even the names of the reviewers of Harbarth’s honorary doctorate adds quite a bit of piquancy to the case. Of course, the university also refused to disclose the contents of the review of the honorary doctorate. With that in mind, it is rather ironic that since Harbarth took the seat of president of the Federal Constitutional Court, one of his favorite activities is attacking Poland and its Constitutional Court.

It is clear from his statements that he does not know the details of the dispute over the justice system in Poland. His most common accusation is … the politicization of the judiciary in Poland. When this is coming from a man who still carries a party ID and addresses the incumbent chancellor as “Dear Angela”, it sounds bizarre. If that’s not hypocrisy, then what is?

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The author is a correspondent of the Polish Television network in Berlin.

This article was published in December 2021 in “Do Rzeczy” magazine.