Billigung (pronounced bill-a-ghin)
(1) To approve.
(2) To acquiesce.
(3) Tacitly to accept; not to oppose.
(4) "Looking the other way" from something one would not wish to admit knowledge of; a means of creating a defense of plausible deniability; a self-denial of knowledge.
1300s: A Modern German form from the Old High German billīh (appropriate), from the Proto-Germanic biliz (merciful, kind, decent, fair), the variant being Billigung (approval; acceptance), the construct being billig(en) + -ung (from the Middle High German -ung & -unge, from the Old High German -unga, from the Proto-Germanic -ungō; it was used to forms nouns from verbs, usually describing either an event in which an action is carried out, or the result of that action). The third-person singular & simple present tense is billigt, the past tense is billigte, the past participle is gebilligt and the auxiliary haben. In German, bein a noun there's always an initial capital but when used in English as a general descriptor (sepecially in a legal context), it usually all in lower-case. Billigung is a noun and in German, there's no plural form although in English-language texts it might appear as "billigungs" for the sake of clarity.
When wishing not to know, look the other way
The German Billigung is not so much hard to translate as able to be translated in a number of senses; context is everything. The way it is used to mean “looking away; avoiding specific knowledge of something which one knows or suspects is happening” was clarified in 1977. Albert Speer (1905-1981, Reich Minister for Armaments 1942-1945), the convicted war criminal, had always denied any knowledge of the holocaust and was displeased when sent the English translation of a profile to be published in Die Zeit magazine in which Billigung had been rendered as his “...tacit consent...” of the final solution. This he corrected, explaining Billigung in this context meant “looking away”. This meant he averted his gaze from the worst crime of the criminal régime he served in order to be able to deny he knew of it. Speer, predictably, was able to summon a word to explain this too: Ahnumg (the sensing of something without quite knowing exactly what). He did at least concede the implication of his translation “...is as grave…” as the original, one biographer noting that had Speer said as much at his trial “…he would have been hanged.” Other historians and some lawyers disagreed with that but it was an assertion the author was unable to pursue. When she tried to nudge Speer a little further, pointing out that for one to look away from something, one must first know it's there, he didn’t deny what he’d earlier said but added they “…must never speak of it again". The moment passed and within weeks he would be dead, dying "on the job" in police slang. Some have noted the feeling Speer conveyed of always somehow longing to confess his knowledge of the holocaust. He so often came so close to admitting he knew what he'd always denied, as if the last great act of his life would have been to admit worst of the the guilt he convinced himself (and some others) he'd evaded when the International Military Tribunal (IMT) at the first Nuremberg Trial (1945-1946) convicted him of war crimes & crimes against humanity (counts 3 & 4) and sentenced him to twenty years imprisonment.
Albert Speer in conversation with his lawyer Dr Hans Flächsner (1896-dod unrecorded) and a legal associate, Nuremburg, 1945.
In what he described as a “...leadership failure...", former Australian cricket captain Steve Smith (b 1989) has admitted he "didn't want to know about it" when he became aware “something” was being planned after seeing team mates in a dressing room discussion. Their talks he witnessed were about ball-tampering, a form of cheating which came to be known as sandpapergate. Billigung is one of those useful German creations (zeitgeist, schadenfreude et al) which in one word conveys what might in English take a dozen or more. Operating somewhere on the spectrum of plausible deniability, Billigung is where someone hears of or perhaps “senses” something of which they’d prefer there be no admissible evidence of their knowledge; they “look the other way”.
For some, Billigung might have come to mind when pondering the recording of a telephone call between then New South Wales (Australia) Premier Gladys Berejiklian and Daryl Maguire, another member of the same parliament with whom she was in an intimate relationship, a man forced to resign as an MP as a result of an (ongoing) investigation by the NSW Independent Commission against Corruption (ICAC) for allegedly using his political influence in business activities. Of interest was the premier’s use of the phrase "I don't need to know about that bit" when the former member began to tell her some details of his dubious deals. To that pertinent observation, Mr Maguire replied "No, you don't". The suggestion is the premier failed to declare a conflict of interest when dealing with the allocation of taxpayer funds which would be to the benefit of her then lover. The words used by the then premier: "I don't need to know about that bit" may be compared with how Speer described his response in mid-1944 to being warned by a friend "never, under any circumstances" "to accept an invitation to inspect a concentration camp in Upper Silesia". Speer's friend explained that at that place he'd "...seen something there which he was not permitted to describe and moreover could not describe". Having received what he claimed was his first knowledge of Auschwitz, Speer asked no questions of anyone, later admitting: "I did not want to know what was happening there". That was what he later called Billigung.
At the time the recording was made public, the former premier denied any wrongdoing beyond having appalling taste in men. Apart from the men in her life (and not a few women would ruefully admit to having "had a Daryl"), she probably was unlucky. Billigung has long been a part of that essential tactic of political survival: "plausible deniability". Actually, as practiced these days, because standards of accountability seem to have declined a bit, denials needs no longer be plausible, just not actually disproven by a publicly available audio tape or film clip. Others, beyond NSW, might be taking interest, especially those south of the border intimately involved in party machines who, apparently for decades, didn't notice certain things going on around them.
On 1 October 2021, the NSW ICAC announced certain investigations into the former premier's conduct in office. Specifically, ICAC is focusing on the period between 2012-2018 and her her involvement in the circumstances in which public money was given to a shooting club and a conservatorium of music and whether that conduct was “...liable to allow or encourage the occurrence of corrupt conduct by Mr Maguire”. The ICAC will explore whether the conduct constituted a “breach of public trust” by placing the former premier in a position where a conflict of interest existed between her public duties and private interests “...as a person who was in a personal relationship” with Mr Maguire. The commission will also investigate whether she failed to report what could be defined as reasonable suspicions that “...concerned or may concern corrupt conduct in relation to the conduct of Mr Maguire”. As a point of law, the ICAC is concerned with actual substantive conduct and conflicts of interest. It is not the test of "apprehended bias" applied to the judiciary where judgements can be set aside if a court finds there could have been a "reasonable perception" of bias or conflict of interest in some way involving a judge. To the ICAC, any degree of perception, reasonable or not, is not relevant, their findings must be based on actual conduct.
On 1 October 2021, Berejiklian announced her resignation from both the premiership and the legislative assembly. There are critics of the NSW ICAC who oppose the public hearings and feel its rules permit an exercise of powers rather too much like the Court of Star Chamber which they say it too closely resembles. However, the former premier can reflect that unlike the IMT at Nuremberg, neither the Star Chamber nor the ICAC were vested with capital jurisdiction so there’s that.
Dieselgate and implausible deniability
Former Audi CEO Rupert Stadler (b 1963, right) with his lawyers Ulrike Thole-Groll (left) & Thilo Pfordte (centre) during his trial, Munich District Court, May 2023.
The billigung defense is still heard in German courts and if not always exculpatory, lawyers still appreciate its effectiveness in mitigation. Rupert Stadler began his career with Audi AG (a subsidiary of the Volkswagen Group) in 1990 and between 2010-2018 was Audi’s Chief Executive Officer (CEO). The scandal which came to be known as “dieselgate” involved companies in the Volkswagen group (and others) installing “cheat” software in diesel-powered vehicles so excessive exhaust emissions wouldn’t be detected during official testing and, after years of obfuscation, Volkswagen in 2015 admitted that was what exactly they’d done. Civil and criminal proceedings in a number of jurisdictions ensued and thus far the fines alone have cost the group well over €34 million. There have also been jail sentences imposed, something which presumably would have been in Herr Stadler’s thoughts when, in March 2018, Munich prosecutors named him as a suspect in their investigations. A week later, he was arrested and held in an Augsburg prison, apparently as a precautionary move because it was claimed he was tampering with evidence by making a telephone call in which he suggested putting a witness “on leave”. After a month, he was released on bail, subject to certain conditions.
In September 2020, Herr Stadler’s trial on charges of fraud began and for years (proceedings now take rather longer than in 1945-1946) he denied all wrongdoing until, in May 2023, he accepted a plea deal offered by Judge Stefan Weickert which would require him to admit guilt. To date, he’s the highest-ranking executive to confess, tempted apparently by (1) the preponderance of evidence before the court which made it clear he was guilty as sin and (2) the deal limiting his punishment to a €1.1 million fine and a suspended sentence which would not see him jailed, an attractive alternative to the long term of imprisonment he otherwise faced upon conviction. As confessions go however, it was among the more nuanced. His lawyer read a statement saying the defendant (1) did not know that vehicles had been manipulated and buyers had been harmed, but (2) he acknowledged it was a possibility and accepted that, adding that in his case (3) there was a need for more care. A classic piece of billigung, was the line (4) “I didn't know, but I recognized it as possible and accepted that the properties of diesel engines might not meet legal approval requirements” while the statement (5) “I have to admit the allegations overall” had an echo of Speer’s admission of “a general responsibility” while denying personal guilt. Still, it must have conformed with the terms of the plea bargain because it was accepted by the judge. His lawyer read the statement, apparently because he couldn’t bring himself personally to utter it but when asked by the judge if the words were his own, Herr Stadler replied (5) “Ja”.
Outside the court, his lawyer was a little more expansive, admitting her client had allowed vehicles equipped with manipulating software to remain on sale even after learning of the scam. “In the course of addressing the diesel issue" after the revelations became public, Stadler “neglected” to inform business partners that cars with so-called defeat devices were still going on the market, meaning he was “accepting that vehicles equipped with the illegal software would go on sale” she said. Although it may have been stating the obvious, she added Herr Stadler regretted he’d been unable to “resolve the crisis”. The carefully composed text may however have averted another crisis, lawyers noting the cryptic nature of some of his comments might be explained by a desire not to create grounds for additional claims by consumers for financial compensation.
How that might unfold remains to be seen but on 27 June 2023 the Munich court handed down a 21 month sentence, suspended for three years, a fine of €1.1 million (US$1.2 million) also imposed; that will go to the federal government and charities, the court ruled without providing details. Herr Stadler was the first member of the Volkswagen board member to be sentenced for his part in the scandal, the judgment coming some four years after prosecutors first laid fraud charges. Guilty verdicts were also delivered against two former Audi executives: head of engine development Wolfgang Hatz (b 1959) and lead diesel engineer Giovanni Pamio (b 1963) who were handed suspended jail sentences of 24 months and 21 months, respectively. Hatz was fined €400,000 (US$437,000) and Pamio €50,000 (US$55,000). All three were guilty as sin so the verdicts were unsurprising.
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Dr Angela Merkel (b 1954; chancellor of Germany 2005-2021) & Dr Martin Winterkorn (b 1947; CEO of Volkswagen AG 2007-2015).
The long-running scandal (the fines and settlements thus far ordered having cost the group some €33 billion (US$36 billion)) still has some way to run because the case against former CEO Martin Winterkorn has yet to be heard although he’s already agreed to pay VW €11.2 million (US$12.3 million) after an internal investigation found he failed properly to respond to signs the company may have been using unlawful technology which enabled its diesel engines to evade emissions testing and it's not yet clear if Dr Winterkorn will try the billigung defense. Herr Stadler was required to pay VW €4.1 million ($US4.5 million) under terms agreed following the same investigation. The company clearly wished to move on and in separately issued statements, Volkswagen and Audi said they were not party to Tuesday’s proceedings, which should be “viewed independently” of proceedings against the companies which had (in Germany) been finalized in 2018. Audi seemed anxious to confirm it was now a righteous corporation, saying “Audi has made good use of the crisis as an opportunity to start over. We have updated our systems, processes and checks to ensure compliance company-wide.” It concluded by noting it had since “cultivated and strengthened a culture of constructive debate.” In exchange for agreeing to pay the fines, prosecutors dropped criminal charges against Volkswagen and Audi.
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