Wagenknecht-Lederer-Debatte (Sparkassenprivatisierung)

Klaus Lederer (MdA in Berlin) fragt „Privatisierung der Berliner Sparkasse?“ im Kontext des Verfahrens zur Veräußerung der Bankgesellschaft Berlin.
Sahra Wagenknecht kommentiert.
Der Lederer-Text: http://www.rosalux.de/cms/index.php?id=11730&type=0
Der Wagenknecht-Kommentar: http://www.antikapitalistische-linke.de/serveDocument.php?id=14&file=3/c/908.pdf

Der Kommentar in englisch:

Sahra Wagenknecht: Commentary to the Paper by Klaus Lederer: “Privatisation of the Berlin Savings Bank?”

In his paper “Privatisation of the Berlin Savings Bank”, Klaus Lederer deals with the policy of the Berlin Senate in the run-up to the upcoming tender procedure for the Berlin Bank Society and the danger of privatisation of the Berlin Savings Bank. Since in this context, the reproach is raised that I claimed erroneously that the Left Party, in 2005, by its consent to the Savings Bank Law created the prerequisites for the “Privatisation of the Savings Bank” in Berlin, I want to take issue with some of Klaus‘ theses. I would be happy if it were possible to lead on this concrete example a matter-of-fact discussion about the origins and consequences of privatisation and to work out possible alternatives for action.

Privatisation as material constraint?
Do communal representatives accept the “trend in the direction… of the participation of private institutions and firms” as “reality of local economic activity and fulfilment of tasks”? Klaus suggests this, when he writes that the Left had to face the “difficulties and problems of communal action resulting from that”.

Wouldn’t it be better if the Left would turn the fatal consequences that corresponding privatisation projects brought with themselves precisely in Berlin into a public topic, and by way of the mobilisation by social movements produce the necessary pressure to be able to correct past wrong decisions and to be able to pursue a different policy? The prerequisites for that are not so bad inasmuch as it can very well be shown on the example of the Berlin Bank Society or the Berlin Water Works that (partial) privatisations and other “forms of combination of public task fulfilment with private strategies and interests” have had no advantages but have further facilitated a plundering of the citizens and the public budgets to the benefit of public investors.

Does legal form really not matter?
Klaus Lederer criticises “confessions to seemingly better legal forms” and defends the thesis that the concrete property and legal form does not play a role in the “pushing through of practical solutions of task fulfilment that do justice to the needs of the population and to democratic and transparent public control”.

I should resolutely contradict that. Even if firms organised in a public and legal way do not automatically satisfy the requirements of democratic and transparent control and guarantee a better supply of goods and services to the population, the public-legal form is nevertheless a prerequisite to be able to realise the alignment of an enterprise with the common weal at all.

After all, the private legal form is meant for enterprises that do not serve the common interest but by the obtaining of profit serve private interests. Accordingly, private entrepreneurs will resist every attempt to operate a business policy oriented towards the common weal that would narrow their profits. The possibilities of a democratic and transparent control are automatically narrowed down by a privatisation (or respectively the taking over of a private economic legal form). Thus private firms in the first instance have to present their accounts to their stockholders – not, however, to the citizens and consumers that have to use the goods and services offered. Moreover, there is the fact that on normal markets, there is competition so that processes internal to the enterprise fall under a strict duty to secrecy. Even partly privatised firms such as the Berlin Water Works, following an order of the Berlin Administrative Court of Justice, are not obligated to lay open their price calculation, since this might disadvantage the company – that has a monopoly in Berlin – in the competition on the Brandenburg market. Thus there can hardly be any question of transparent public control.

On the interpretation of the credit system law
As Klaus Lederer records, the Savings Banks, according to § 40 KWG (Credit System Law), as public legal companies, are oriented towards the common weal and obligated to their local circle of action (regional principle). By contrast, there was, according to him, absolutely no unity on the “question whether this also necessarily presupposes a public ‚owner‘ and whether the profits on principle had to be invested in a way related to the common weal.”

To my knowledge, unity ranges from the German government by way of the German Saving Banks Association to the Federal Agency of Supervision of the Credit System (BaFin) with regard to the point that only public-legal institutes that use their profits for the common weal or save them should have the right to carry the name “Savings Bank”. Everything else would be a deceit of the consumers as the German Savings Bank Association states with view to Berlin.

Now the interpretation of the Credit System Law following which only public-legal institutes can call themselves Savings Bank that use their profits in a common weal-oriented way is being questioned by Berlin’s Finance Senator Sarrazin in agreement with the economic advisory firm Freshfields Bruckhaus Deringer that already for years intends to play a pioneer role in the privatisation of Regional and Savings Banks. In this context, he points to the fact that the Berlin Savings Bank already since the founding of the Bank Society has transferred its profits to the Bank Society. “If paragraph 40 KWG (Credit System Law) really presupposed a use of profits for the common weal and at the same time prohibited any kind of transfers to private operators, the BaFin would have been acting in contravention to the law and would have to permit the question why it did not intervene against a use of the name ‚Berlin Savings Bank”, thus Sarrazin in a letter to the BaFin. Of course, it would have been better if the BaFin had intervened earlier and had already prevented such a dubious construction like the Bank Society Berlin Inc. where – as already in the case of the Berlin Water Works – an institution of public law has been placed under the direction of a private legal holding with private participation. Yet should one demand to give legal blessing to this breach of law with hindsight?

The fact that parts of the Berlin Senate appropriate an argument according to which private banks as well under certain conditions should have the right to bear the name Savings Bank is a scandal. Here it is played in an irresponsible way into the hands of the private banks that in one or the other way want to “crack” § 40 KWG / Credit System Law. In case they should not succeed to strike out the corresponding paragraphs in the Credit System Law – and the Federal Government has announced that it is not prepared for that – they would have to depend on such a kind of reinterpretation of the Credit System Law. A corresponding precedence case in Berlin would be very welcome to them in that connection. And the precedence case does not let itself be defined away as easily as Lederer is trying who reproaches the anti-capitalist left with trying to stylise a “model case Berlin”. As certain articles from the financial press prove, there is no need for the anti-capitalist left to do that, since it is obvious that what happens in Berlin can easily be generalised.

The Berlin solution – a cheat package
It is true that the Berlin Senate by the decision to accord comprehensive restructuring aid to the troubled Berlin Bank Society Inc. has manoeuvred itself into a difficult situation, because the EU now in its countermove demands the sale free of discrimination of the shares of the city of Berlin to the Bank Society Berlin Inc.

Excepting for a moment from the question whether a controlled disentanglement and declaration of insolvency of the Bank Society would not have been better than the risk shielding decided by the Red-Red Senate, there comes up the next question, whether the Berlin Senate really must be interested in that also private operators can be owners of a Savings Bank. The contrary seems true to me: By trying to enable the sale of the Savings Bank to private banks, one runs the risk that (not only) Berlin stands there without a bank institute obligated to the common weal. Because to believe that a private bank will submit voluntarily to the “special common weal-oriented, savings bank- typical duties”, will not pursue profit as its main purpose and will let itself prescribe by a Berlin Senator to what foundations it gives its surpluses or how it organises its account conditions or collective agreements is after all a bit naïve. In this respect, the German Savings Bank Association is right when it refuses the solution propagated by the Berlin Senate as a cheat package.

On the criticism of the Berlin Savings Bank Law
As Klaus describes, it is in the case of the law passed by the Red-Red Senate on the Berlin Savings Bank and the transformation of the Regional Bank Berlin into a stock-holding society (Berlin Savings Bank Law) a case of “getting done the splits between privatisation obligation and retention of the Savings Bank label and the public legal duties.”

The law prescribes that the Berlin Savings Bank be transformed into a partly legally empowered public legal institution without its own property, organisation structure and bank licence that shall transfer its profits to a stock company that is given the operator’s licence of the Savings Bank on loan. The point is thus that the Savings Bank will remain a public legal institute – however, under the roof of a stockholding company that can be bought by private investors.

This complicated and legally disputed construction fatally reminds one of earlier models of “Privatisation keeping up the public legal form” that were tested on occasion of the founding of the Bank Society Inc. in the year 1994 as well as of the partial privatisation of the Berlin Water Works in 1999 – with catastrophic results for the Berlin population. The similarity has a reason: Both the legally disputed partial privatisation law as well as the equally disputed Berlin Savings Bank Law were worked out by the advisory firm Freshfields, Bruckhaus, Deringer, according to Report Mainz of March 20 “one of the best addresses for billion-heavy economic deals” that “is by way of advisor contracts linked superbly with the Federal Association of German Banks and many large banks.” The same consulting firm also took on the task to explain the Savings Bank Law to Berlin deputies in hearings.

At the latest at this point, the question may be permitted why a Red-Red Senate relies on the expertise of economic advisory firms that earn their money with the privatisation of public property? Why did one not give these means to other lawyers (for instance, from the trade unions or foundations close to these) with the task of finding out legal ways how to rescue in a fully functional Savings Bank in Berlin obligated to the common weal or respectively to establish one?

Were there or are there alternatives?
There we are at the question for alternatives to the policies of the Berlin Senate. Is Klaus Lederer right when he leaves us no other choice than that between a “Savings Bank” free zone, on the one hand, and a de facto privatisation under maintenance of the public-legal façade as the Berlin Senate strives for?

As Klaus himself hints at there has broken out a furious dispute over the question of Savings Bank privatisation between the German federal government and the EU commission. While the EU Commission insists on fulfilment of the tasks, meaning discrimination free sale of the shares owned by the country of Berlin in the Bank Society Berlin Inc., the federal government can point to the fact that a sale of the Berlin Savings Bank to a private bank cannot be reconciled with the German Credit System Law. The situation is thus unclear – and the question must be asked why the Berlin Senate shirks from using the means of the Savings Bank self-foundation or respectively new foundation as a political means of pressure.

It is still possible to maintain or respectively to create a fully functional Savings Bank obligated to the common weal. In the question for the “how”, maybe a look to Stralsund or to Saxony can help, where there have already been attacks at the local savings banks a couple of years ago that could be thwarted by massive public mobilisation.

Translated by Carla Krüger, June 14, 2006