PRESSRELEASE
22 February 2011
Meinl Bank responds to rumoured move by State Prosecutor Markus Fussenegger to
Feldkirch: “Now the facts, rather than prejudices, should speak for themselves“
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Proceedings to date characterised by problematic methods for constitutional
state
Proceedings without foundation – six domestic institutions reconfirm legal
opinion of Meinl Bank
Bank hopes rumoured move will not lead to delays
After it was leaked in today’s profil online that it is possible that State Prosecutor Markus
Fussenegger will no longer be responsible for Meinl Bank in future, those involved at the Bank
are confident that facts will shape the methods of the State Prosecutor’s Office in future, rather
than prejudices as in the past. Nobody has a greater interest than Meinl Bank in conducting
proceedings as rapidly as possible, as Peter Weinzierl, a Member of the Bank's Management
Board, pointed out today. It was only to be hoped that Fussenegger’s rumoured move would not
lead to delays.
Weinzierl went on: “We hope, moreover, that facts will begin to speak for themselves. The
proceedings to date, as conducted by State Prosecutor Fussenegger, have been characterised by
highly problematic methods for the constitutional state and by attempts to use violence to frame
both Julius Meinl and Meinl Bank itself. The detention of Julius Meinl awaiting trial on 1 April
2009, for instance, was based on a report written by a court expert later dismissed due to
prejudice, and on a police report riddled with statements whose substance was demonstrably
false.”
As long ago as June 2009, the renowned Austrian constitutional law expert Univ. Prof. Heinz
Mayer had established the illegality of the detention awaiting trial in a report. In addition to this,
six domestic institutions and the Jersey Financial Services Commission have commented on the
case, and reconfirmed the legal opinion of Meinl Bank on fundamental questions surrounding
the proceedings:
ƒ The Austrian Takeover Commission confirmed that the Austrian Takeover Act was not
applicable to MEL. This confirmed that MEL was managed by a self-contained,
independent management in Jersey, and not by either Julius Meinl or Meinl Bank.
ƒ The Procurator Financial, or the lawyer for the State of Austria, and the Independent
Administrative Tribunal Vienna confirmed the position of Meinl Bank that the buyback
of MEL certificates in 2007 did not have to be disclosed to the public.
ƒ Österreichische Kontrollbank and the Vienna Stock Exchange shared the legal opinion of
the Bank regarding the question of the distinction between shares and certificates: that
holders of certificates are treated equally to actual shareholders in all key shareholders’
rights.
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The Ministry for Consumer Protection affirmed the principally valid legal position that
independent financial advisors are required to answer for their consultation services, and
are responsible for these.
In a statement dated 22 December 2010, the Jersey Financial Services Commission
announced the results of a long and intense investigation, establishing that the buybacks
in 2007 of MEL certificates (ADCs) listed on the Vienna Stock Exchange did not
represent a breach of company law, and were therefore in line with the law. This
investigation was carried out by two inspectors appointed by the Jersey Financial
Services Commission.
Chronology of events since 1 April 2009
1 April 2009
Julius Meinl is detained awaiting trial.
This is clearly illegal, since the detention is based upon:
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a preliminary report written by a prejudiced expert unqualified to offer an expert
opinion – in addition to this, the report contains over 80 serious errors over just
25 pages
a police report – which is based upon false assumptions and claims.
3 April 2009
Julius Meinl is released after the State Prosecutor’s Office demands that a bail payment of EUR
100 million be made.
The level of the bail contravenes the requirement of appropriateness and proportionality
April 2009
Vienna State Prosecutor’s Office applies for various properties of Julius Meinl to be confiscated.
The application is rejected by the Independent Court in May 2009. Despite this, the State
Prosecutor’s Office submits an appeal, which is eventually rejected by Vienna Higher
Regional Court in March 2009.
May 2009
Julius Meinl is granted access to the preliminary report dated 27 March 2009 for the first time,
followed by the police report dated March 2009 a few weeks later.
This is clearly illegal. Under the law, every defendant has the right to comprehensive
access to the records to enable him to defend himself.
June 2009
In a report, constitutional law expert Univ. Prof. Heinz Mayer arrives at the conclusion that the
detention of Julius Meinl in April 2009 is illegal:
“If the direction of Vienna State Prosecutor’s Office of 27 March 2009 in the present case is
viewed against the background of the prevailing teaching and jurisdiction, there is no doubt that
it is unlawful. The circumstances that Vienna State Prosecutor’s Office cites as the reason for
the risk of flight are either false, because they are not present, or they are not appropriate for
constituting a concrete risk of flight.”
There is no reaction from the State Prosecutor responsible.
July 2009
The expert is dismissed from the Independent Court for prejudice.
Despite this, he submits an invoice for over EUR 700,000.
The State Prosecutor responsible still does not submit an objection against the
dismissal on 13 July 2009.
Summer 2009
An application is submitted to the State Prosecutor for a statement on the erroneous police
report.
There is no reaction from the State Prosecutor responsible.
September 2009
Vienna Higher Regional Court confirms the dismissal of expert Thomas Havranek for prejudice.
As an essential cornerstone of the detention, Havranek’s report should become
ineffective at this point at the very latest. Despite this confirmation of the illegality of the
detention, there continues to be no reaction from the State Prosecutor responsible.
September 2009
Application submitted to the State Prosecutor for the repeal of the detention awaiting trial of
Julius Meinl: The 2 cornerstones of the detention, a) that the police report is erroneous, and b)
that the report is erroneous and no longer relevant, have now been removed.
No reaction from the State Prosecutor’s Office.
October 2009
The Procurator Financial – “lawyer for the Republic” – confirms that there was no requirement to
disclose the buyback of MEL certificates in 2007.
A written pleading by the Procurator Financial states the following: “According to Paragraph 82,
Clause 9 of the Stock Exchange Act in the version applicable at the time, MEL was not required
to disclose the buyback of the certificates”.
As a result, the Republic of Austria officially confirms the legal opinion of the proceedings
advanced since the beginning by MEL and Meinl Bank.
November 2009
In a written pleading, Vienna Stock Exchange unmistakeably establishes that holders of ADCs
(certificates) were treated equally to shareholders.
December 2009
After an investigation lasting two years, the Austrian Takeover Commission establishes that
MEL is not subject to Austrian Takeover Law. The unmistakeable result of this is that the seat of
the MEL was Jersey and not Vienna, and that consequently MEL was controlled neither by
Meinl Bank nor Julius Meinl, but by the MEL Board.
December 2009
Since 5 December 2009, all penalties issued by the Financial Market Authority (FMA) against
Meinl Bank in connection with MEL have been repealed. Vienna Independent Administrative
Senate (Unabhängiger Verwaltungssenat or UVS) had been looking into the issue, and the
Bank was sent the appropriate notification yesterday. In total, three decisions of this nature,
which accused representatives of the Bank of misleading advertising and market manipulation,
were issued between October 2007 and February 2009.
December 2009
Independent Court insists upon a copy of the statement on the police report at the police.
Only now, on 16 December 2009, does the State Prosecutor commission the police with
the task of delivering a statement on the erroneous police report.
January 2010
Statement by the police on the erroneous police report which led to the detention is available.
Result: the police obtained the information which led to the detention when used in its
report from erroneous media reports. – Still no reaction from the State Prosecutor.
February 2010
Vienna State Prosecutor’s Office appoints Fritz Kleiner and Andreas Freudenmann as new
experts.
The experts are released from their obligation to report costs from the very beginning.
The appointment is announced in the media before the participants are informed it is to
take place. In the opinion of the Bank, moreover, the appointment contravenes the legally
required objectivity order throughout.
February 2010
After essential documents are removed from the access records – including, amongst others,
the interrogation protocols of Rupert-Heinrich Staller, whose statement was essential for the
detention of Julius Meinl – Meinl submits a claim for infringement due to the refusal to access
the records.
On 25 February 2010, the Independent Court finds in favour of this appeal due to
infringement, and confirms that the refusal to access the records does indeed represent
an infringement.
The reasoning of the Court is as follows: “Access to records during the preliminary and main
investigation, and thereby knowledge of the content of those records, forms the foundation of a
thorough defence and comes under the principle of due process, under which §51, Clause 1 of
the Code of Criminal Procedure states that the defendant is explicitly granted a subjective right
to access the mediation record.”
June 2010
State Prosecutor corrected by Independent Court
Decision by Vienna Regional Court for Criminal Matters deprives fraud allegations of any basis
– essential sections of breach of trust allegations are qualified. Due to the fact that still some
research by the state prosecutor is underway, the bail is not yet restituted. Decision in that
matter is now with court of next higher instance.
December 2010
The Jersey Financial Services Commission (JFSC) declares in a statement dated December
22, 2010 that the buy-back by Meinl European Land (MEL) in 2007 of ADC’s listed on the
Vienna Stock Exchange representing issued shares in the company did not breach Jersey
Companies Law. This statement was the conclusion of an investigation by the Jersey Financial
Services appointed Inspectors.
Meinl Bank AG:
As a private bank, Meinl Bank provides services in the areas of corporate finance, fund management and
private and institutional asset management. Meinl Bank controls its own investment fund company, Julius
Meinl Investment GmbH, which currently has 19 of its own funds. Meinl Bank has a stable economic
basis without need for governmental support, the bank’s equity ratio amounts 16% and is twice as high as
the legally-required capital backing. The bank finds itself well-positioned for the future.
Further enquiries to:
Meinl Bank AG
Press Office
Thomas Huemer
Tel: +43 1 531 88 – 203
E-mail: [email protected]
(Non-official translation)