The parliamentarians have completed their investigation, but an important detail is still missing. In the final report of the Wirecard commission of inquiry of June, we therefore read in turquoise in italics in the margin: “Preliminary drafting – will be replaced by the final version”. On 2,026 pages, the committee members recorded what they had discovered about the Wirecard fraud case since October. From business basics with payment transactions to details of allegations against individual managers to failed authorities, it’s all included. Only one report on the work of the Wirecard EY auditor in the years leading up to the mega-bankruptcy is still missing.
Parliamentarians would have liked to publish the so-called Wambach report, but EY disagreed. Such disputes in parliamentary committees of inquiry end directly before the Federal Court of Justice in Karlsruhe. An examining magistrate has now decided: the report must remain locked up. Because the investigation committee dissolved when the final report was submitted to the Bundestag – it no longer existed when the request was received in full by the BGH. The request is therefore inadmissible, according to the resolution of August 6. The question of whether the secrecy of the report can be lifted “must therefore remain open”.
This is a major defeat for the commission of inquiry. In March, the committee tasked Cologne auditor Martin Wambach to review EY’s work as a Wirecard auditor from 2014 to 2019. Wambach and his team consulted numerous boxes and thousands of files containing EY internal documents. By then, the BGH had already decided whether this confidential material should be used or not. In this case, parliamentarians were still successful.
Wambach report shows EY may have been slumped
In his multi-part report, committee members are confident that Wambach documented EY auditors’ failure. According to reports, the special commissioner discovered many starting points for the fact that Wirecard auditors had “not fully implemented” professional regulations. At EY, so the tenor, there may have been slippages, and this is one of the reasons the alleged fraud at Wirecard was not exposed earlier. EY has always rejected that. SPD chairman on the committee, Jens Zimmermann, had described Wambach’s results in May as a “resounding slap” for EY.
The BGH decision is now followed by a resounding slap in the face for the Inquiry Committee. Because his request to lift the secrecy of the Wambach report was received by BGH just in time – a day before the committee dissolved on June 25. However: “The preconditions for a decision on the matter must be present at the time of the court ruling on the application. It was not until much later that all the necessary documents were received by the BGH. On August 5, when the BGH decided, the committee no longer existed. Contrary to what is stated in the request, according to the BGH, the Bundestag cannot simply take the place of the commission. And it is not enough, according to the BGH, to mark the report as “draft draft” to be able to maintain the demand.
For thousands of aggrieved shareholders and many lawyers, the BGH decision is bad news. The report is already circulating, at least in part, in circles of attorneys who wish to use it in their lawsuits against EY – but it should be of no use to them. Because there is little to be gained from the insolvent group Wirecard, lawyers for the investors are instead trying to force auditors to be held accountable in court. There are high obstacles for this; so far all trials in regional courts have failed. The Wambach report, which was very unfavorable to EY, could certainly support such complaints, but civil courts generally do not recognize classified documents.
Upon request, EY briefly said that it welcomed the fact that BGH has now made a decision.