The video can be found on the Internet, in a soft but firm voice the Baden native speaks of the best condition “we have ever had”. And that he wished the Basic Law a good time, “also in the coming decades”.
Whether this happens depends on Harbarth himself. It is now agreed that he will shortly be chosen as the new president of the highest German court. However, his past is currently weighing heavily on the Karlsruhe constitutional authorities. Since the beginning of his proclamation as constitutional judge, critics have emphasized that Harbarth, as a former lawyer and CDU politician, cannot act neutrally.
His new employer is in a tricky situation. In Karlsruhe there is a constitutional complaint against his appointment in November 2018, a decision will be forthcoming shortly. A second was discarded on Wednesday.
In addition to questions about its independence, it deals with the following fundamental issues: Are politicians and lawyers, who are classic interest groups, transferred to a court, and even the highest German, right? And which measure of independence must apply? Doesn’t a constitutional judge have to rule out the appearance of dependency?
Two of Harbarth’s biggest opponents are lawyers from their own party: Cologne law professor Heribert Hirte and Cologne lawyer Claus Schmitz.
Did shepherds have to go because of Harbarth?
The 61-year-old shepherd sits for the CDU in the Bundestag – and is now, after the election of the AfD man Stephan Brandner, provisional chairman of the legal committee. He is a law professor at the University of Hamburg – and was co-editor of the “Zeitschrift für Firmenrecht” (ZGR), which has been published since 1972, and was the main patron of its international counterpart ECFR.
The two periodicals are considered the leading figures in the scene. In addition to well-known names such as Wulf Goette or Gerd Krieger, Hirte was a member of the editorial group – until he was excluded there and Stefan Harbarth was accepted. Shepherd cannot understand this and is now fighting in front of the Karlsruhe Higher Regional Court against his exclusion from the committee, which he considers ineffective.
Did shepherds have to go because they wanted to make room for the future constitutional judge Harbarth? The office of chairman of the 1st Senate in Karlsruhe and thus of the potential new president could only be awarded with the blessing of Chancellor Angela Merkel.
And when the discussion about this position began in 2017, Harbarth surprisingly appeared as Merkel’s place neighbor at the CDU / CSU Group’s Christmas party at the time. The “world” then reported that Harbarth was apparently chosen “for higher things”.
The newspaper for corporate law, however, contests a plan for the admission of the future constitutional judge Harbarth. Peter Hommelhoff, former rector of Heidelberg University and co-editor of ZGR says: “When Harbarth was appointed in June 2018, the other editors were not aware that he would be appointed to the Federal Constitutional Court at the end of 2018.”
Doubts about the appointment as honorary professor
Claus Schmitz, on the other hand, believes that Harbarth received questionable help on the way to Karlsruhe. Gray suit, light gray shirt and CDU party book – the 38-year-old lawyer openly opposes Harbarth because he is “worried” by his appointment. Schmitz’s law firm HMS Barthelmeß Görzel is in the heart of the cathedral city, he is behind the constitutional complaint against Harbarth that the constitutional court did not accept for decision.
Reason: Schmitz himself is not directly affected by Harbarth’s appointment. “It is hard to understand that such an important topic is dismissed with four lines,” says Schmitz.
He does not see himself as a nest polluter within his party. “If I believe in a legal system, it always has to work,” says Schmitz. He continues to believe that Harbarth’s appointment is not lawful and believes that Heidelberg University paved the way for Harbarth University by awarding him the title of honorary professor in March 2018.
Lawyer Schmitz therefore turned to the university to clarify why and by whom Harbarth became an honorary professor there. However, the university refuses to give him the names of the two external reviewers who support the professorship, as well as access to the reviews.
The university also relies on confidentiality vis-à-vis the Handelsblatt – “in the interest of the open word in academic appointment and appointment procedures”. Talks prior to the appointment were “not known” to the law faculty.
Regarding the motivational situation, it is said that Harbarth has worked as a lecturer and lecturer for the university since 2004. And he corrected exam exams. On the basis of this longstanding, “outstanding commitment”, the Faculty Council of the Faculty of Law unanimously decided in February 2017 to propose Harbarth as an honorary professor.
Assumptions about interconnections
Is Schmitz right if he doesn’t believe in coincidence? The silence of Harbarth’s assessors by the University of Heidelberg does not help to dispel suspicions about interrelationships – especially since there is an obvious financial and personnel proximity of the university to Harbarth’s former law firm SZA Schilling Zutt & Anschütz from Mannheim.
The law firm and the university not only created the Wolfgang Schilling Foundation together – for one of the firm’s founding fathers, who was himself an honorary professor in Heidelberg. Since then, symposia have been held jointly with the participation of law firms and Heidelberg legal scholars.
With Thomas Liebscher, another SZA partner is an honorary professor at the university. The emeritus Heidelberg university professor Peter Ulmer was a member of the law firm’s supervisory board for a long time. Both were not involved in the process for Harbarth’s appointment, the university said.
The law firm SZA is also a sponsor at the chair for German and European business law. “Incoming payments from SZA were recorded for 2015, 2016, 2017 and 2019. They each amounted to 1,000 euros, ”says the university.
Even if you consider all of this to be a coincidence: the Harbarth Causa also puts the Federal Constitutional Court in an awkward position due to the constitutional complaints. If the second complaint is also perpetuated without a great reason, it is accused of not taking the issue seriously.
Even the attitude of the still-president Andreas Voßkuhle is questionable. Attorney Schmitz had made an application to take Vosskuhle out of the Harbarth trial for bias. But Vosskuhle’s Senate has now put an end to this – with Voßkuhle’s participation. In mid-2019, he had given his opinion in an unusual way about his position on Harbarth’s appointment.
With regard to his potential successor, Voßkuhle emphasized that it is good for the court to have one or two people in his ranks who understand politics.
Collision point with the judge’s office
Harbarth’s work as a politician and lawyer is currently a central component of the constitutional complaints. As a legal and domestic politician, it was Harbarth’s job to comment on and initiate legislative proposals – a point of conflict with the judge’s office, since laws are often reviewed at the constitutional court – as a last resort.
Before moving to court, Harbarth also worked in the front line for the large law firm SZA Schilling Zutt & Anschütz. First as a board member, later after a change of form as its managing director. Slogan: “Companies come to us”. Examples for SZA clients: Heidelberger Druckmaschinen, BASF, HVB, BayernLB or the supervisory boards of Deutsche Bahn and von Innogy. Harbarth’s clients included CropScience, Südzucker and Daimler.
His former law firm also advises Volkswagen. SZA still represents the carmaker in the diesel scandal against potentially damaged investors. VW shareholders are demanding around nine billion euros in damages because, in their opinion, the company informed the diesel scandal too late and the fall in the course caught them cold.
Harbarth did not appear in the mandate itself, and SZA emphasized when asked that he had not been involved with client VW. But his partners Markus Pfüller and Thomas Liebscher. Harbarth therefore also benefited from the Volkswagen fees. As a legal politician in the Bundestag, he also represented positions that may well have been in the interests of the group: In the discussion about the model declaratory action – a kind of Lex VW, with which damaged VW buyers are now taking action against the group – Harbarth spoke against class action lawsuits with punitive damages out.
In addition to the Cologne lawyer Schmitz, the law firm Dr. Stoll & Sauer went to Karlsruhe – on behalf of two Volkswagen customers and one shareholder. The firm is best known for representing thousands of drivers against companies like Volkswagen and Daimler in the diesel scandal. “I am very concerned that the appointment of Stephan Harbarth could lobby lobbyists from the automotive industry directly influence the court,” says lawyer Ralph Sauer. Lobbyists would undermine fairness and equal opportunities in society.
Harbarth has so far defended himself by saying that anyone who wants lawyers in Karlsruhe should not complain that their law firms also have clients. Was he ever involved in the VW mandate? Harbarth also says no.
Is that crucial? Harbarth was the executive board or managing director of the law firm.
Isn’t that enough for the appearance of dependency? Léa Briand from MP Watch sees a clear conflict of interest: “It doesn’t matter that Harbarth said he wasn’t personally involved in the VW case at the firm. As a board member, he has to protect the interests of the law firm – and ultimately that of the clients as well. “
The lawyer Schmitz’s constitutional complaint finally came up against something else. Harbarth was one of those MPs who, on the side, received substantial sums from their legal work. Exactly how much Harbarth collected and for what is not known.
Annual income of over one million euros
By law, he is only obliged to classify additional income in a fee class. According to the “Spiegel”, Harbarth is said to have generated annual revenues of over one million euros. Neither Harbarth nor SZA wanted to say anything about it. His law firm’s annual reports indicate that he was “full time” there.
According to the Members’ Act, he is not authorized to do so, Schmitz and Sauer. The law only allows sideline work. “The exercise of the mandate is the focus of the activities of a member of the Bundestag,” says the Members’ Act. So what did Harbarth get his high compensation for? Neither those who chose him as a judge, nor those who sit next to him on the bench or judge Harbarth know that.
The first lines of conflict have already emerged – albeit in other areas. Harbarth’s Senate will soon have to decide on the new law to combat child marriage. Harbarth, as a politician, had campaigned intensively for a ban on such marriages and, according to his own statements, had “been intensively involved in the preparation and passing of the law”. His senate, however, released him from bias – if not unanimously.
The same was true of a law on drastic cuts in Hartz IV benefits – for example for missed appointments or rejected jobs. Harbarth had voted for these tough sanctions as a politician. Despite criticism from politics and the media, he stayed on board with this decision.
President Voßkuhle apparently doesn’t find all of this so dramatic. The office of constitutional judge could also change people. Vosskuhle once said that he had seen very conservative people quickly become liberal judges.
Schmitz and Sauer don’t want to rely on it. They are convinced that Harbarth, as a long-standing corporate lobbyist and CDU member of the Bundestag, is the wrong choice for the Federal Constitutional Court.
More: The new constitutional judge Stephan Harbarth is highly praised, but not without controversy: some see the economic interdependencies of the top lawyer as problematic.