Having closed, after almost five years, their investigatory proceedings under section 153a StPO (German code of criminal proceedings) against Dr Frenzel following a financial settlement, the Dusseldorf public prosecutor has now laid charges in the Duisburg district court against Mr Feuerhake (as well as against Prof. Klaus Lederer, formerly a director of Babcock Borsig AG).
According to the written charges submitted, Rainer Feuerhake is alleged to have committed acts constituting the offence of breach of trust to the detriment of the shipyard HDW when the division of construction and shipbuilding was transferred to Babcock Borsig in the year 1999. Furthermore Rainer Feuerhake is accused of having supported the delay of filing the bankruptcy petition by the management of Babcock Borsig in the year 2002. Rainer Feuerhake and Prof. Lederer both have the opportunity to file their observations against the accusation. The court will then decide whether it should open the full trial process.
TUI AG remains of the same opinion that Rainer Feuerhake has acted lawfully, both at the time of the transfer of the construction and shipbuilding division to Babcock Borsig, now more than eight years ago, and in connection with the bankruptcy of Babcock Borsig in the year 2002.
Legal opinions by two renowned criminal law professors of the Universities of Bochum and Cologne have clearly rebutted the charge of breach of trust for the detriment of HDW in every respect. In essence the charge fails on the basis that the shareholders of HDW approved the transfer of the assets to Babcock, and furthermore on the basis of the lack of an objective impairment of HDW’s assets. HDW has a healthy market position today, as t did a that time, and its existence was never endangered even at the time when it belonged to Babcock.
The charge of having delayed the filing for bankruptcy proceeding can only be made against the legal representatives of Babcock Borsig. Only they are under the obligations in Section 92 of the German Stock Corporation Law and the corresponding criminal sanction in Section 401 Stock Corporation Law in case of a delay. Rainer Feuerhake, however, was not a legal representative of Babcock Borsig. He was rather a member of the supervisory board. Mr. Feuerhake never advised the members of the executive board of Babcock Borsig to refrain from a necessary filing of the bankruptcy proceeding. The results of the investigation proceedings themselves do not support these charges.