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COURT BLOCKS HOCHTIEF BERLIN AIRPORT DEAL

Everything seemed to go along: The Berlin Brandenburg Flughafen Holding (BBF) finally could be sold to the Hochtief consortium for a good price so that the application plan for building Berlin's new large airport BBI (Berlin Brandenburg International) could have been prepared and turned in by the end of the year. No one really expected a success of the competing IVG consortium's law suit - until the higher regional court (OLG) Brandenburg revealed dubious activities, such annulling the sales and the privatization of the BBF.

The mood of the Hochtief employees is accordingly low. "I am very surprised by the OLG judgment. The court has turned an existing prohibition to discriminate into a prohibition of the suspicion of discrimination. This means, that it is not the point anymore if a competitor has been discriminated against in the course of the application but, it is already enough that there could be the possibility that discrimination took place."

Insiders, such as Sabena General Sales Manager Bernhard Lisutin, confirmed that not only IVG was pleased with the OLG ruling but the entire branch in general: "There is justice in this world! Had the court ruled different, I, as expert of the branch, would not have understood it, and would have said that we live in a Mafia-type world. The OLG judgment is absolutely correct since the court has unveiled some deep swamps."

Indeed, the judges disapproved of some mistakes, for example the conferring of double mandates. The Berlin finance senator Annette Fugmann-Heesing (SPD), as one example, participated in the conferring while at the same time having seats on the board of the Hochtief consortium as well as on the BBF.

This opinion is not shared by the politicians. Volker Kähne, the head of Berlin's senate office, explains: "On the Berlin level, this is actually not a double mandate in the traditional meaning since Frau Fugmann-Heesing was not part of the board which actually had to decide upon the privatization and project itself. This means, she was not on the board and had no function in its decisions." It looks like no one takes the blame, only saying that the technical minimum requirements were not sufficiently described in the bidding.

Such a behavior is creating annoyance. Bernhard Liscutin's comment: "I am astonished that the involved politicians, being the decisive figures in this story, don't at least keep quiet if they get caught. They rather pretend to be completely innocent." Liscutin believes to know the backgrounds and insights. According to him, state minister Dr. Jürgen Linde was town commissioner in Gelsenkirchen back then, such automatically having a seat on the board of the RWE and in the organization supervising Hochtief (which is a 100 percent subsidiary of RWE). Now, Dr. Linde is in the committee of the BBF and is one of the persons to decide which company will build the new airport, Liscutin wonders. At the same time, Linde is good friends with Dr. Herbert Märtin, head of the WIB consultant group. But, says Liscutin, Linde says that he had only met Dr. Märtin in 1991 while Linde had already working together with him in their early political engagements. Märtin, in turn, has a position in the monitoring group of the project planning company Schönefeld (PPS), a 100 percent subsidiary of the BBF.

The branch insider furthermore says: "Märtin has stated beforehand that he has never had a consulting contract with either of the two consortium or any of their subsidiaries. However, he knew exactly that he was consulting both, RWE and Hochtief in Düsseldorf, along with another contract for the Frankfurt airport company." Now it is the turn of the public prosecutors, who are already investigating, to reveal the exact role of Dr. Märtin.

Hochtief speaker Paulsen is refusing to comment any further. He neither rejected or confirmed the court's accusations, saying that the consortium had prohibited contacts to a planning company of the WIB, which was working for the PPS at the same time. It looks like the PPS is going to be blamed with all of the responsibility. Paulsen quotes the OLG's ruling: "The PPS should have researched whether there were any forbidden contacts, but has failed to do so." The PPS itself does not want to take this blame: "We are publicly blamed for being the stupid ones who were not able to do their job right", says Burkhard Kieker, the PPS speaker: "In reality - with the exception of the points in which we might eventually be the ones who were betrayed, something the public prosecutors will have to find out - we were aware of the other circumstances, such as the double mandates, and these were handled in accordance with the law. This was not enough. Maybe we were wrongly advised." It will also be up to the lawyers to find out whether the PPS will be the only ones to blame or if some other people actually knew more than they would like to admit.

In any case, the true legal situation was obviously not clear to the participating parties. Kieker complains that there was a new law concerning the placing handed out during the ongoing procedure. He wonders "that the judges applied a law, which has just become effective in January, on the case which has been going on for two and a half years".

Any way, the OLG ruling is a defeat for the former owners and the Hochtief consortium. Worse, there is a time loss of approximately six months because the bidding process is supposed to be picked up at a point before the contract was awarded. Both of the bidding consortiums are relying on good luck to finally get the contract.

IVG consortium leader, Dr. Klaus Köllen, is optimistic since "now, after we have increased the value of our offer, the public will get a better airport for the same price".

Also, Hartmut Paulsen is still sure to have a good chance of succeeding with the bid: "What the OLG has pointed out are not mistakes, which are in the responsibility of Hochtief. As far as the technical concept is concerned, we have been convinced for quite some time that our concept is at least as good as our competitor's. I think that our financial concept is better all together than that of the other bidder."

The successful law suit by the IVG is not the only problem that the Berlin airport operators are facing. There is the still the question of the passenger fee. The airlines are jointly fighting this plan and are willing to go to court.

Now, the airlines are hoping that they will be included in new negotiations. IVG speaker Köllen supports this approach: "The airlines complained that they were not included in the planning process by Hochtief. We are looking at such a project from the customer point of view. This means, that the airport users, among others the airlines, have to come on board. Still, it must be said that an airport can not be financed by just eliminating all of these fees."

Berhard Liscutin is counting how much such a passenger fee would cost the airlines: "With the current approach we are paying 2530 Marks for a Boeing 737 with 95 passengers that lands and departs in Berlin. With the financing fee of 16,80 Mark per passenger this would be 1600 Marks more. If the operators succeed with their plan to raise the general fees beginning in November by five percent, followed by another five percent raise next year, the fees will have doubled as compared to now by November 2000 and we will be the most expensive airport in Europe."

For the time being, one will have to wait and see how the privatization and the planning for Berlin's new airport moves along. Meanwhile the public prosecutors have found and confiscated documents of the IVG holding at Hochtief. The prosecutors will now have to find out whether this is a case of industrial espionage. The Hochtief concern has already refused such accusations, saying that both consortiums, with the approval of the seller, were allowed to take a look at the competing offers. IVG speaker Köllen comments on that "The insight of the documents of the competing party was very limited and by no means transparent."

Should there have been spying, this would mean an exclusion of the Hochtief consortium from the bidding. Until then the motto will be: "Seconds out for the next round!"

From page 42 of FLUG REVUE 10/99