The Ministry of Justice of the State of North Rhine-Westphalia (NRW Ministry of Justice) does not have to grant access to information on reports by public prosecutors in investigations into "cum-ex" transactions of WestLB AG and the processing of these reports in the Ministry of Justice. This was the decision of the 29th Chamber of the Düsseldorf Administrative Court in a ruling just announced in public session today, dismissing the action brought by shareholders of Warburg Bank based on the North Rhine-Westphalia Freedom of Information Act (IFG NRW).
The court states in justification of its judgment: The IFG NRW does not apply to the activities of authorities of the public prosecutor's office if they are active in the field of criminal justice. This is particularly the case when investigative proceedings are conducted. The NRW Ministry of Justice also constitutes a (higher-level) authority of the public prosecutor's office. This is because, under the Courts Constitution Act, the ministries of justice can use instructions to influence the content of the investigative proceedings conducted by the public prosecutor's office. The NRW Ministry of Justice acted in this capacity when it processed the reports of the public prosecutor's office on the "Cum-Ex" investigation proceedings with regard to the possible exercise of its rights to issue instructions. Both the reports of the public prosecutor's offices and the file notes of the NRW Ministry of Justice have a sufficient connection to the investigation proceedings, which means that they are excluded from the scope of application of the NRW Freedom of Information Act.
An application for leave to appeal against the judgment may be filed with the Higher Administrative Court for the State of North Rhine-Westphalia in Münster.
File reference: 29 K 329/21
Source: Press release of the Administrative Court Düsseldorf from 24.08.2023