HHLA is said to have violated guidelines

Anyone who operates critical infrastructure (Kritis) in Germany, i.e. a facility that is of great importance for supplying the population with electricity or drinking water, must register with the Federal Office for Information Security (BSI). This is what the Kritis Ordinance provides. This is to ensure that special safety standards are observed in order to better protect the facility and thus public safety.

Such a rule also applies to ports that are immensely important for the German economy – above all the Port of Hamburg. However, according to information from NDR, WDR and “Süddeutsche Zeitung” (SZ), the local operating company, HHLA, may have failed to register the container terminal in Tollerort (CTT) as a critical infrastructure with the BSI at the right time last year.

Planned partial takeover at risk

It is precisely this delayed classification that could now ensure that a planned entry by the Chinese state shipping company Cosco at the Port of Hamburg, which the federal government has been examining for months, may no longer come about.

In a recent letter from the Federal Ministry of Economics to the members of the Economics Committee in the Bundestag, which is available to NDR, WDR and SZ, Robert Habeck’s house chooses clear words: According to this, HHLA was obliged to have the terminal by April 2, 2022 at the register with the BSI. A significant threshold with regard to the handling volume at the terminal has been exceeded since 2021.

Possible misdemeanor

This registration as a criticism only took place in January 2023 “at the request of the BSI”, as the letter says. The ministry goes on to write: “Anyone who intentionally or negligently fails to register is acting improperly.”

The BSI is responsible for conducting administrative offense proceedings. The Ministry of the Interior, which is responsible for the BSI, has not yet answered the question of whether such a procedure is being carried out.

Classification requirement for the deal

This raises the explosive question of whether HHLA made an incorrect classification during the examination process by the federal government. With the assumption that the terminal is not critical infrastructure, the federal government allowed a possible Cosco stake of 24.9 percent in Tollerort last October. This agreement had been highly controversial in the traffic light coalition.

Olaf Scholz’s chancellery actually wanted to allow the Chinese company Cosco to acquire 35 percent of the container terminal in Tollerort. Six other ministries and especially representatives of the Greens and FDP were against it. Finally, the government agreed on a partial ban and a possible 24.9 percent. At the request of both parties to the acquisition, the Federal Ministry of Economics is examining the new acquisition contracts.

Supporters of the China deal in Hamburg, including SPD leader Lars Klingbeil and Hamburg Mayor Peter Tschentscher, had declared security concerns to be unfounded and argued, among other things, that the port terminal in question was not critical infrastructure. China therefore has no access to relevant systems.

Last week, NDR, WDR and SZ reported for the first time that the port terminal had now been classified as critical by the BSI and was therefore particularly worthy of protection.

Operator sees no irregularities

Unlike the Economics Ministry, HHLA has so far not seen any irregularities in the registration of the terminal. A spokeswoman said last week that a new category had been introduced as part of an amendment to the Kritis regulation. Since Tollerort falls into this category, the CTT, like all other HHLA terminals in Hamburg, was registered as critical infrastructure at the beginning of 2023.

When asked, HHLA contradicted the Ministry of Economics: “From HHLA’s point of view, the position of the Federal Ministry of Economics is factually and legally unfounded. HHLA informed all the authorities involved in the ongoing investment review process about the handling volumes at the CTT comprehensively and transparently at all times.”

In general, HHLA recently stated on the investment project that all the conditions imposed by the federal government had been implemented in the contracts with Cosco. We are now only waiting for a response from the Federal Ministry of Economics. HHLA also stated that Cosco would “gain no access and no decision-making rights – just as little in relation to the land and soil of the terminal” if it had a stake in the Tollerort terminal.

Decision open again

How does it go from here? The German government’s decision in October 2022 to grant permission for a lower investment of 24.9 percent, according to the letter to the members of the Bundestag, “was based on the assumption that HHLA CTT is not a Kritis operator”. Now, however, the planned investment by the Chinese could still tip over.

Because the basic requirements have changed according to the Ministry of Economic Affairs. The ministry is now examining “the impact of the new findings” on the decision at the time, says the paper to parliament. The dpa was the first to report on this section of the letter. In the case of critical infrastructure, according to the Foreign Trade and Payments Ordinance, even the planned acquisition of just ten percent of shares must be checked more strictly.

Mayor continues to promote entry

Hamburg’s First Mayor Peter Tschentscher (SPD) is meanwhile even promoting Cosco’s entry in the USA. According to media reports, the process was just the topic of a meeting with US politician Nancy Pelosi. Accordingly, he tried to convince Pelosi of the deal: he assured that if Cosco was involved, the infrastructure would remain 100 percent in public hands.