Criminal financial actors: Cum-Ex fraud: threatened statute of limitations puts pressure on authorities

In the largest tax scandal in the Federal Republic, the cum-ex stock transactions, some of the criminal allegations have already expired. “We found this in 34 of the more than 130 cases,” said Cum-Ex chief investigator for the Cologne public prosecutor’s office, Tim Engel, in Düsseldorf. The authority’s 130 cases are directed against around 1,700 suspects.

None of the 34 proceedings affected by the statute of limitations, which are directed against a large number of defendants, should be discontinued. Rather, allegations against individual defendants must be dropped as part of these proceedings. According to senior public prosecutor Engel, up to ten defendants can no longer be prosecuted criminally. “For everyone else it’s just a matter of partial statute of limitations.” That means: Some of their actions are statute-barred, others are not. The state could collect the money through another way – a confiscation process, said Engel. “That remains our goal: We want to collect and get back as much money as possible.”

During the tax fraud, which reached its peak between 2006 and 2011, financial actors moved stocks with (“cum”) and without (“ex”) dividend entitlement back and forth in a game of confusion. In the end, taxes that had not been paid were refunded. As a result, the state and thus the general public as a whole were cheated out of a double-digit billion euro amount. In 2021, the Federal Court of Justice classified Cum-Ex as a criminal offense.

At the end of 2020, many allegations became statute-barred

According to the lawyer who has been at the helm of the responsible Cologne main department since May 2024, most of these statutes of limitations occurred before December 2020. At that time, a law was changed and a limitation period for particularly serious tax evasion was extended from 10 to 15 years.

The statute of limitations, which was changed to 15 years at the time, expires in many cum-ex cases at the end of 2025. The authority now treats such cases as a priority. “But the truth is also: In my opinion, this will not be possible in some of these proceedings,” said Engel, admitting that further allegations will probably become statute-barred at the turn of the year.

The public prosecutor can interrupt the statute of limitations and extend the deadline to a certain extent, but this does not always work. If, for example, a suspect lives abroad, the German authorities must submit a request for legal assistance. If the suspect is then interrogated abroad, the statute of limitations is interrupted. But if the address was wrong and the suspect no longer lives there and therefore cannot be questioned, the “measure to interrupt the statute of limitations” will be ineffective.

36 cum-ex public prosecutors in Cologne

According to the information, the Cum-Ex department of the Cologne public prosecutor’s office has 39 positions for prosecutors, 36 of which are filled. The Bonn Federal Central Tax Office falls within its area of ​​responsibility, which is why the Cologne authority has a special nationwide role in Cum-Ex cases. Since 2019, she has brought twelve charges, which in the vast majority of cases led to convictions – one case was discontinued for health reasons.

There will be many more indictments in the coming years; according to Engel, prosecutions are likely to drag on into the next decade. Looking ahead to 2025, Engel said: “More charges are being prepared.” But the issues are complex. “It still takes time to complete the proceedings – we are generally not dealing with confessed perpetrators.”

NRW Justice Minister Benjamin Limbach (Greens) emphasized the importance of criminal prosecution. “We have to process Cum-Ex on a large scale, we have to get back the assets that were illegally stolen – that is money that we lack to build daycare centers, renovate schools and renovate courthouses.”