Ai Weiwei and his legal team have, since 2011, fought allegations, arrests and fines for tax evasion case widely regarded as "political retaliation" by the Chinese goverment.
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The Ai Weiwei papers

On 27 September, the Chinese courts rejected Ai’s second appeal against a £1.5m fine for tax evasion. Here, his legal team sets out the facts of a case riddled with corruption and secrecy.

An Introduction
Jerome A Cohen

The New Statesman is rendering a great public service in making available an English-language account of the Chinese government’s use of its tax laws to persecute the innovative and courageous Chinese artist and activist Ai Weiwei. Having been pressured by world opinion to release Ai from the harsh and blatantly illegal confinement to which its police had subjected him for almost three months, the Chinese government decided to crush him by resorting to economic measures whose illegality would presumably be less apparent both to its own citizens and to the outside world.

Fortunately, thanks to the presentation that follows this introduction, the unfairness and abuses that have marked this tax case have been unmasked. As Ai’s lawyers make clear, at both the administrative and the judicial levels the proceedings against him have been a farce. Much of the evidence apparently used against Ai was unlawfully collected and retained by the police and the tax authorities. Administrative hearings that purported to determine his alleged tax liability were truncated and plainly in violation of international standards of due process of law, and the subsequent judicial reviews were no better.

I personally am saddened at this spectacle for reasons that transcend our friendship and my admiration for Ai. It is nauseating to witness the damage that the Chinese government has chosen to inflict on its reputation through the misuse of its criminal justice and tax systems. As an international lawyer and a law professor seeking to assist in China’s economic development, I spent over 20 years co-operating with Chinese officials who were seeking to develop a legal  system that would earn the confidence of its own people and of the foreign business community. Beginning in 1979, for several years I enjoyed especially close relations with the National Taxation Bureau, which, during the early period of the Deng Xiaoping reform era, led the way for other government agencies in establishing impressive regulations and procedures for carrying out its responsibilities and for developing a legal process worthy of respect.

The handling of the Ai Weiwei case has been totally inconsistent with that earlier accomplishment. Neither the Chinese nor the foreign communities can afford to ignore the scandalous mistreatment of Ai. If he can become the victim of criminal and commercial injustice, no one in China or who deals with China can feel safe.

Jerome Cohen is a professor of law at New York University and an expert in Chinese law

The Fake Cultural Development Ltd tax case

1. Process summary

On 3 April 2011 in the morning, Ai Weiwei was taken away by police at passport control at Beijing Capital International Airport.

On 3 April 2011 at midday, Beijing Public Security searched Ai Weiwei’s residence for almost 12 hours. They confiscated 127 items, including computers and CDs. Ten people were taken to the police station for questioning until the early morning.

On 3 April 2011 at midday, Ai Weiwei’s assistant Wen Tao was kidnapped by four plainclothes police officers and went missing. He was illegally detained at a secret location and not released by public security until 24 June. Before this, his family was unaware of his location and received no official notification.

On 6 April 2011 in the evening, Beijing Municipal Public Security went to Beijing Huxin Ltd, the bookkeepers of Fake Ltd. They searched company information, including bookkeeping records and financial statements, dating from its establishment. Xinhua News Agency then published an English bulletin: “Ai Weiwei is suspected of economic crimes and is now being investigated according to the law.”

On 7 April 2011, Beijing Public Security brought the company accountant, Hu Mingfen, who was visiting family in Lanzhou, back to Beijing. After being put in a detention centre for one month, she was transferred to a secret location and detained illegally until she was “granted bail” on 13 June. Her family received no official notification.

On 8 April 2011, the Second Tax Inspection Bureau and Beijing Public Security searched and confiscated all of Fake’s financial and accounting information, contracts and seals from 2005 to 2010.

On 9 April 2011, the Fake shareholder and manager Liu Zhenggang was kidnapped by four men in plain clothes. After being put in a detention centre for one month, he was transferred to a secret location and detained illegally until he was “granted bail” on 11 June. His family was unaware of his location and received no official notification.

On 10 April 2011, the driver Zhang Jinsong was taken away. After being put in a detention centre for one month, he was transferred to a secret location and detained illegally until he was “granted bail” on 23 June. During this time, his family was unaware of his location and received no official notification.

On 12 April, Beijing Local Taxation Bureau Second Tax Inspection Bureau questioned Fake’s legal representative, Lu Qing, for the first time. On 20 May 2011, Xinhua News Agency published a bulletin stating: “Public Security has investigated the alleged Ai Weiwei economic crimes case. The preliminary finding is that Beijing Fake Cultural Development Ltd, under the actual control of Ai Weiwei, has committed offences including evading a large tax payment and deliberately destroying accounting records.”

On 22 June 2011, after 81 days in detention, Ai Weiwei was released “on bail” and returned home. His family members received no official notification. They could not get information about his suspected crime, what forceful measures were used and where he had been detained.

On 14 July 2011, the Bejing Local Taxation Bureau Second Tax Inspection Bureau held a closed hearing.

On 1 November 2011, the Beijing Local Taxation Bureau Second Tax Inspection Bureau decided that Fake had committed tax evasion and was required to pay 5,263,756.61 yuan in back taxes, a 3,190,331.52 yuan late-payment penalty and a 6,766,822.37 yuan fine. The three payments totalled 15,220,910.50 yuan (£1.5m).  n 29 December 2011, Fake asked for an administrative review at the Beijing Local Taxation Bureau. On 29 March 2012, the Beijing Local Taxation Bureau turned down the request for a review.

On 13 April 2012, Fake sued the Beijing Local Taxation Bureau Second Tax Inspection Bureau at Beijing Chaoyang District People’s Court. The trial opened on 20 June 2012. On 20 July, the court rejected the entire Fake case.

On 3 August 2012, Fake lodged an appeal at Beijing Second Intermediate People’s Court. On 27 September 2012, in the company’s second and final appeal, the intermediate court upheld the original decision.

2. Points of controversy in the tax case

The Fake tax case contains grave problems and controversy in terms of both procedure and facts.

1. Points of controversy in the procedure

Procedure is essential in implementing justice.

Although Fake repeatedly raised serious procedural issues, the tax authorities and courts gave
no response. The main problems at each stage of the procedure are as follows:

1.1. Beijing Municipal Public Security Bureau
1.1.1. Public security exceeded its authority in the Fake tax case.

According to the Criminal Law Amendment (7) and the regulations on the administrative pre-procedure related to “Provisions (II) of the Supreme People’s Procuratorate and the Ministry of Public Security on the Standards for Establishing Criminal Cases under the Juris - diction of the Public Security Organs for In - vestigation and Prosecution”, only after the offending party has declined to implement tax administration penalties and after the tax organs have transferred the case to public security organs can public security organs establish a criminal case against the responsible parties. The Second Tax Inspection Bureau made its decision against Fake only on 1 November 2011. It is clear that in April 2011 public security detained five people in secret, including Ai Weiwei, on the grounds of “tax evasion”. They searched and confiscated Fake financial information, which was exceeding their authority and handling the case illegally.

In the Fake tax case, the tax organs were completely reliant on the Public Security Bureau for their evidence, and the police were pushed to the legislative foreground, which strengthened the contradiction and artificially produced   case of “major impact”. The police administration was brought into the government administration mechanism, which in essence weakened the function of legal and responsible adminstration.

1.1.2. “Arrest before investigation” is a violation of the law. On 3 April 2011, public security took Ai Weiwei away. They then detained four people, including a Fake shareholder and the company accountant. However, of the evidence  in the file put together by public security, none was collected before 3 April 2011. The essence of “an arrest before investigation” is assuming that a suspect is guilty.

1.1.3. The authorities confiscated all the company’s account books and refused to give them back. During the Fake case review, first hearing and final hearing, the company’s account books were confiscated by Beijing Municipal Public Security and not given back.

1.2. Beijing Local Taxation Bureau Second Tax Inspection Bureau

The Bureau was responsible for the adminis - trative handling of the case. The following problems existed in its administration and law enforcement:

1.2.1. More than 95 per cent of the evidence came from public security and was obtained illegally. The Second Tax Inspection Bureau issued the following statement on the composition and source of the “evidence list”:

“1. Account books, certificates and related tax documents were provided to the defendant after they were obtained by public security  organs from the plaintiff’s bookkeeping company;

2. Third-party account books, certificates, instructions and other materials were provided to the defendant after public security organs obtained them;  

3. Notes from public security questioning were taken by public security and then provided to the defendant;

4. Bank statements etc were provided to the defendant after they were obtained from the bank by public security;

5. Inspection process documents and notes were produced by the defendant; 6. Tax records, inspection materials and certificates from tax organs were obtained by the defendant.”

This indicates that most of the evidence that the defendant cited in the Fake tax case and for making a decision came from the Public Security Bureau.

Fake believed that: first, the evidence “transferred” from public security organs was obtained while violating legal procedures. It therefore constituted illegal evidence and should be discounted. Second, the Law on the Administration of the Levy and Collection of Taxes has given tax organs tax inspection rights through legal means. This is the responsibility of the tax organs, and the public security organs should not be investigating on their behalf.

The Second Tax Inspection Bureau argued that the public security organisations exercise judicial authority. According to the 57th and 58th clauses of the Law on the Administration of the Levy and Collection of Taxes, tax organs have the right to obtain relevant documents from organisations including public security organs. Based on this, obtaining evidence from public security organs is legal.

Fake believed that the 57th and 58th clauses of the Law on the Administration of the Levy and Collection of Taxes gave tax organs the right to investigate “relevant organizations and individuals, regarding taxpayers, withholding agents and other parties and their situation regarding tax payments or tax withheld and remitted or collected and remitted”. This is completely different from public security investigating taxpayers and transferring evidence, so the defendant’s response was irrelevant.

1.2.2. None of the evidence had been crossexamined. This should be regarded as a lack of factual basis. During the hearing procedure, the bureau presented only part of the review document. It had not been checked. During the trial, the plaintiff’s right to cross-examine was also removed by the court.

1.2.3. In order to comply with public security, coercive methods were used to obtain evidence. The Second Tax Inspection Bureau and public security, on condition of “bail”, coerced Ai Weiwei, who was in prison, to sign a “recognition of alleged tax violations” on 22 June 2011.
This was self-incrimination, and was used as forceful evidence that Fake had evaded taxes. It would be hard to imagine that the “recognition of alleged tax violations” could be a legal document at the tax inspection trial stage. However, it appeared at the previous tax inspection stage, as if a man-made satellite had appeared in the Qin or Han Dynasty.

1.2.4. The tax inspection work had no statutory elements or contents.

The Second Tax Inspection Bureau did not have documents such as the “tax inspection working paper”, “tax inspection report” and “tax inspection trial report”. The contents of the “decision declaration” were incomplete. It did not mention how the “tax evasion” amount or the late-payment penalty amount were calculated.

1.2.5. The hearing process violated the law. The Second Tax Inspection Bureau did not conduct an open hearing on the basis that the case involved commercial secrets. This reason is not valid, and the facts later confirmed that the socalled commercial secrets did not exist.

1.3. Beijing Local Taxation Bureau

The bureau carried out the review. On 2 February 2012, Fake applied to the bureau for a review of the documents and hearing attendance. On 27 and 28 March the document inspection started. On 29 March, the bureau made a decision about the review. Not only did it refuse to conduct a hearing, it made a decision about the review in less than 12 hours after the lawyers finished inspecting the document. They deprived the attorney of his right to state his case and the right to defence.

1.4. Beijing Chaoyang District People’s Court

Fake sued the Beijing Local Taxation Bureau Second Tax Inspection Bureau at Beijing Chao - yang District Court. The hearing was held on 20 June 2012.

1.4.1. It was called an open trial but in fact it was a secret trial. A trial as conspicuous as this was arranged in a small court, which could hold five spectators only. Five insiders were arranged to take up all the seats, and Fake was not allocated any spectator seats.

1.4.2. The court did not carry out its obligation in collecting evidence. Fake had previously requested the court to provide evidence of the plaintiff’s account books and certificates that were confiscated by public security, but the court had decided not to collect the evidence prior to the court session, nor had it sent a notification to the plaintiff saying that collecting this evidence was not allowed.

When Fake asked the court about this, the collegiate bench said, “We will answer this after the trial opens.”

1.4.3. The court did not carry out its obligationto call witnesses. Fake applied to summon Liu Zhenggang, Hu Mingfen and others as witnesses, but the court did not inform them. It claimed that the obligation to notify lay with the plaintiff. Fake asked for the defendant’s law- enforcement officials – ten people, including You Pengnan – to testify, but the court did not arrange for it.

On the contrary, however, after the court opened, You Pengnan appeared, representing the defendant. Fake raised an objection, but the collegiate bench replied that the company should raise it again after the trial.

1.4.4. The court removed the plaintiff’s right to present evidence. Fake requested evidence
from the collegiate bench prior to the opening of the court, but received no response. On 20
June in the morning, Fake went to the Three Shadows Cultural Exchange Centre and obtained evidence partly sufficient to overrule the decision. In the afternoon of 20 June, before the court opened and three times during the court session, the evidence was presented to the collegiate bench, but the court did not accept it, because it “overran the deadline for presenting evidence”.

1.4.5. The court refused to investigate the legitimacy of the sources of the evidence. According to law, the defendant can collect his own evidence, but it was all collected by public security authorities. More than 95 per cent of the evidence on administrative behaviour presented by the defendant was collected by public security organs.

Public security intervened in the tax case illegally, and the evidence was illegally obtained from detainees, which was not legitimate. Therefore, the plaintiff asked for the above evidence to be discounted. However, the court claimed that “the legitimacy of the public security investigations is not within the range of this court’s hearing”.

1.4.6. The court refused the plaintiff’s legitimate request to check the original evidence documents, and illegally removed the plaintiff’s right to cross-examination. During the session, the defendant failed to present any original documents for evidence. The presiding judge, Wu Nan, upon the request to see the documents, repeatedly struck his gavel and said, “As for the documents, the court has already made a decision; do not bring it up again!”

The court “summarised” when questioning the evidence and did not control the questioning time reasonably. Pieces of evidence numbering a thousand pages were given five minutes for questioning: on average, less than one second for every page of evidence. If the time exceeded five minutes, then the questioning would be regarded as abandoned.

1.4.7. The court removed the plaintiff’s right to debate. The plaintiff’s speech was repeatedly interrupted by the judges and was counted down. During the debate stage, three attorneys spoke for only ten minutes in total. The plaintiff could not fully express an opinion.

1.4.8. For these reasons, the plaintiff considered that the collegiate bench could not carry out this trial justly, and therefore requested the court to withdraw the case.

After the court was adjourned, the collegiate bench refused the request. The plaintiff appealed the decision, and the Chaoyang District Court refused orally, refusing to offer any written documentation.

1.4.9. The court refused to allow the litigants and the representatives to copy the court notes.
After the hearing, the court administrative divisional director promised the defendant that the following day at two o’clock in the afternoon they could come to the court to copy the notes, but the next day when they went to court, copying was no longer permitted, the court citing internal regulations.

1.4.10. The order of legal procedures was swapped when the court refused Fake’s request for evidence only after the trial. On 7 June 2012, Fake made its “application for collecting evidence” to the court.  The court did not respond. Yet after the court opened on 4 July, it decided not to allow any evidence to be collected. The reason given was that the defendant “did not meet the conditions for requesting evidence”. However, the decision did not contain a notification, required by law, to specify “which group and which piece of evidence violated which condition for evidence collection”.

2. Focus of controversy over the facts of the case 

Global Times, a subsidiary of the Chinese official newspaper the People’s Daily, published an editorial, entitled “The law will not bend for mavericks”, on the Ai Weiwei tax case, saying that certain western governments and “human rights organisations” had attacked China with strong commentary without understanding the true situation.

What is the truth behind the Ai tax case? Fake Ltd was established by the shareholders Lu Qing and Liu Zhenggang. Lu Qing was the legal representative and the wife of Ai Weiwei. Liu Zhenggang was business manager, responsible for company operations. The company’s income came mainly from design services. Ai Weiwei was not a staff member of Fake, but provided guidance and advice to the design services of Fake as an independent artist.

Fake went into operation in 2001. The tax organs believed that, over ten years of operation (until 2010), Fake concealed three counts of income, totalling 15,823,724.36 yuan. They pursued unpaid taxes of 5,263,756.61 yuan, a fine for overdue payment of 3,190,331.52 yuan and a penalty of 6,766,822.37 yuan, totaling 15,220,910.50 yuan.

Regarding the facts, the parties were in controversy over the following:

2.1. Who was the tax-paying entity for these three projects with alleged tax issues?

The standard for determining the tax-paying entity depends not on form, but on substance. This is the so-called principle of substance over formality in tax law. The heart of the problem is, who was the true controller of these three projects? Usually the actual controller is determined by who has the right to dispose of and the right to benefit from income. In tax law, the object of the test to determine the right to dispose of and the right to benefit from income is the sum of income. The public security organ, tax organ and the lawyers of Fake all acknowledged that Liu Zhenggang disposed of and controlled the project funding in the case. It is a shame that the conclusion drawn by each party was very different.

2.2. Was it tax evasion?

Regardless of whether the tax-paying entity was Ai Weiwei, Fake Ltd or Liu Zhenggang, the fact that tax duty had not been declared on the income for the three engineering projects is not in dispute. The key to the problem is, does the failure to declare taxable income constitute tax evasion?

According to China’s Law on the Administration of the Levy and Collection of Taxes, there are generally three types of failure to declare tax duty:

2.2.1. “Tax evasion”: falsely filing or deliberately failing to file taxes, causing an underpayment
of tax, following Term 63 of the Law on the Administration of the Levy and Collection of Taxes. This is breaking the law. If it reaches a certain ratio, it constitutes a crime.

According to Term 201 of the Criminal Law, it is the crime of evading payment of tax. The constituents must consist of the resulting elements, namely underpayment of tax and of a clear amount.

2.2.2. “Tax leakage”: not deception or concealment, but human error causing underpayment of tax, according to Term 64, Article 2 of the Law on the Administration of the Levy and Collection of Taxes. It counts as a normal administrative offence, not a criminal offence.

2.2.3. “Making up tax”: underpayment of tax caused by reasons not related to the actor (including incomplete factors in levying tax), as in Article 35 of the Law on the Administration of the Levy and Collection of Taxes. For example, where, although it is clearly income, the expenditure can’t be verified. The tax organ, by approving the profit rate, makes complete the factors in levying tax to realise the aim of levying tax. This type of underpayment of tax is the result of the expansion of administrative powers of the tax organs. It is not breaking the law, so the authorities cannot levy an overdue payment fine or penalty fine.

The contention of this case is focused on the dispute between “tax evasion” and “making up tax”. A simplified breakdown illustrates:

According to the law, when the cost is difficult to verify, an estimated tax should be levied. It should not be handled as a case of tax evasion. When the costs and expenses of a project cannot be checked, it cannot be asserted that the party has been evading tax.

2.3. The issue of verifying costs and expenditures for the three projects

The Second Tax Inspection Bureau said, “The defendant, upon confirming the total amount of taxes that the plaintiff should have paid, has also confirmed the costs related to the taxable income and subtracted it according to regulations.”

The plaintiff believed that the three projects that the tax bureau considered as evading taxes are defined by incomes that greatly mismatch with their costs. The Second Tax Inspection Bureau verified the income of the Boya Garden project as 1,107,716.00 yuan and its costs as nil. That goes against common sense. Income from the Three Shadows and Upper House projects was 14,716,008.36 yuan, the confirmed cost was nearly 1,047,349.39 yuan and the rate of profit was 92.88 per cent.

The costs were ridiculously low because the public security and tax organs jointly and deliberately concealed evidence of costs. For example, it has already been proved that Three Shadows, upon requests from the public security organ, presented it with receipts for expenditure of 3,738,551.06 yuan for materials used in the project. However, the total cost for all three projects that the tax organ received from the public security organ was only 1,047,349.39
yuan, less than a third of the cost for one project. Through this kind of deliberate selection of evidence, the profits of the projects were artificially enhanced to frame the company.

3. Conclusion

When one looks at the overall progress of the case, it is clearly an erroneous lawsuit. How could it have proceeded so smoothly? Because all the processes had already been arranged. The tax law-enforcement organ, the administrative review organ, the judicial court or representative lawyer were all following a set course. Administrative surveillance, independent trial and lawyer participation had no opportunity to exercise their rightful functions.

Tax cases such as that of Fake are ubiquitous in China. Unjust cases of sanctioning a party through tax means are also common. Most of the affected parties choose to remain silent in exchange for a reduction of the penalty by the tax organisation.

Fake used all means to fight its case, exposing illegality at each stage. This is unprecedented. The wish is that, through the heavy price paid by Fake, through the price for freedom paid by a person who doesn’t believe in following trends and who dares to speak the truth, we can make progress in China’s law enforcement.

The information used in this article was provided by Ai Weiwei’s lawyers

This article first appeared in the 22 October 2012 issue of the New Statesman, Ai Weiwei guest-edit

Photo: STEFAN BONESS/PANOS
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What Britain needs to understand about the profound and ancient divisions in Germany

As Angela Merkel campaigns for re-election, the balance of power in Europe is changing.

On 24 September, Angela Merkel will be re-elected chancellor of Germany and that, we might think, will be that. With Merkel and France’s Emmanuel Macron in control of the European project, populism will surely be vanquished and the old Franco-German core of the EU restored. Yet things are changing, and if western Europe wants Germany to keep singing “Ode to Joy” as enthusiastically as “Deutschlandlied”, it will have some work to do. Our Brexit negotiators need to see how important this is to Macron, to other European leaders and, above all, to thinking Germans.

For we may all soon miss the old, self-effacing Germany. Despite having such economic power, it always seemed to have no greater wish than to exist as part of a larger whole. Konrad Adenauer, its first postwar chancellor and founding father, made Westbindung (“binding to the West”) the heart of West German politics. Adenauer came from the deeply Catholic Rhineland, “amid the vineyards” as he put it, “where Germany’s windows are open to the West”. His instinctive cultural sympathy was with France, but he knew that West Germany’s existence depended on keeping America in Europe. France he courted out of profound conviction, the US out of clear-eyed necessity, and he was worried that after him this twin course might be abandoned. His demands for reassurance during his final year in office led to John F Kennedy’s “Ich bin ein Berliner” speech of 1963. Every West German knew about that, and about the Berlin Airlift: these became locations of national memory from which West Germany triangulated its sense of self.

There were some Germans for whom this was too much. Anti-Americanism was ingrained among West Germany’s hard left, the early Green Party and the tiny hard right. But even Germans who were suspicious of America had no fear of tying themselves closer to Europe. On the contrary, that was exactly what they wanted. The standard explanation of this is guilt. West Germans, in this argument, felt so remorseful about the horrors of the Second World War that they wanted to make amends. This idea fitted with others’ belief that Germany did indeed have much to feel guilty about.

A nuanced version of this held that the western Germans thought they had somehow “got away with it”, compared with their brethren in the east, who had felt the weight of Soviet vengeance: rape, pillage, occupation. Accordingly, Germany’s willingness to subsume itself so thoroughly, even as it footed the bills for the European Economic Community and later the European Union, was accepted with little gratitude, almost as an ongoing war debt repayment.

This guilt thesis is based on a misunderstanding of German history, especially of the experience of western Germans. The most graphic illustration of this comes from Adenauer. In 1955, he privately informed the British that while he was obliged to act in public as though he wished for reunification, he intended to devote his remaining years to blocking it. In 1961, he secretly proposed to the Americans that they offer the Russians a swap: they and he should, he said, give up West Berlin in return for Thuringia (the region containing Leipzig and Weimar). He wanted, in effect, to make the River Elbe the eastern border of Germany.

Why did Adenauer dislike the eastern Germans, think Berlin was expendable and consider the River Elbe to be the natural frontier? Simple: he knew that the Elbe was Germany’s Mason-Dixon line. Beyond it lay the flat, grim Prussian heartlands, which until 1945 stretched into present-day Russia. This vast region was known to Germans as “Ostelbien” – East Elbia. Adenauer viewed the “unification” of Germany in 1871 as East Elbia’s annexation of the west. That’s why in 1919, as mayor of Cologne, and again in 1923, he tried to get Britain and France to back a breakaway western German state. Having failed, he is said to have muttered, “Here we go, Asia again,” and closed the blinds every time his train crossed east over the Elbe.

Prussia was a different country. The victorious Allies agreed. On 25 February 1947, they declared: “The Prussian state, which from early days has been a bearer of militarism and reaction in Germany… together with its central government and all its agencies are abolished.” The name Prussia was eradicated. The Prussian hegemony of 1871-1945, an anomaly in the two millennia of German history, was over.

If we understand this, we understand what West Germany really was and why it acted as it did; why the “reunification” of 1990 – or, at least, the way it was handled – was such a mistake; why we may all have to stop taking Germany quite so much for granted now that East Elbia is back; and why our Brexit negotiators are on a hiding to nothing if they believe that the Germans have no more urgent business to consider than their car exports to us. Far more important to liberal Germans is keeping safe the western soul of Germany.

***

West Germany was anything but an artificial construct. It was the historical Germany, being almost geographically identical to what was, for almost 1,200 years, the only Germany. Julius Caesar named the land, together with its people, in 58 BC; 49 years later, Drusus, the greatest commander of the infant Roman empire, is said to have been supernaturally advised that after defeating every tribe he met in Germania, he should halt at the River Elbe. By 100 AD, Roman rule was shown by a fortified border, the Limes Germanicus. You can still walk large stretches of it; it encompasses most of the richest land in modern Germany and all of the great cities except Hamburg, Berlin and the 19th-century industrial monocultures of the Ruhr. Even these last were born as trading posts or forward bases within what archaeologists call the “market region” of Germania – the lands beyond the limes where commerce with the Roman empire defined the whole culture. Southern and western Germany’s cultural roots are almost as Roman as France’s.

But what about 9 AD and the destruction of three Roman legions by the German tribes under Arminius? There is a popular myth that this kept all Germany free and different. We owe this idea to Martin Luther and his supporters: Luther claimed from 1520 onwards to be a German, anti-Roman hero and identified himself with the newly rediscovered tale of Arminius. More decisively, the events of 9 AD were an obsession of later Prussian historians, who had an interest in claiming that the real Germany was one that was pure and un-Romanised. Yet the reverse is true. Under the Romans, then the Merovingians, then the Franks, the Rhine/Danube super-region of Germany remained politically and culturally a part of western Europe. After Charlemagne, a Rhineland German, “restored the Roman empire” (as his seals put it) in 800 AD, western Germany was the very centre of things. It was never a nation state, but always the key part of a greater whole, the Holy Roman empire.

Along the Elbe, things were different. Charlemagne extracted tribute from the pagan Slavs across the river, and his successors tried to build on this, but the German conquest and settlement of East Elbia only really began with the Wendish Crusade of 1147, the northern arm of the Second Crusade. Three centuries later, the entire region was still hotly disputed by Balts and Slavs, with German supremacy threatened by major defeats at Tannenberg (1410) and in the Hussite Wars (1419-34).

Long-contested frontier lands breed a special kind of society. The German incomers cowed the natives, such as the pagan Pruscie from whom they ultimately borrowed their name, through brute force. Where they couldn’t, they had to make armed deals with local elites. In this new sort-of-Germany, the Junkers, an aggressive landowning caste, lorded it over the Slavs and Balts – as well as poorer Germans, who knew that the locals would cut their throats if the Junker castles fell, so were loyal and subservient to their masters. East Prussia remained like this within living memory.

In 1525, Prussia named itself and declared itself the first Protestant state. From then on, it had absolute rulers, the Hohenzollern dynasty, backed by a quiescent Lutheran state church. The Junkers swore loyalty in return for exclusive access to all officer-level jobs in the army and the administration. By the mid-18th century, Voltaire quipped that while other states had armies, the Prussian army had a state. The overriding strategic concern of Prussia was always with the east. In his 1758-59 campaigns, Frederick the Great was shocked to find the Russians extremely hard to beat. He bequeathed to his successors a policy of keeping the tsars onside. Partitioning Poland between them was the sticking plaster that masked this Russian-Prussian rivalry, right until 1941.

This thoroughly east-facing power was, by the normal standards of European statehood – history, social structures, religion, geography – a different country from the Rhineland, Swabia or Bavaria. It defeated them all in 1866, laying the ground for the “unification” of 1871. The Prussian empire (for that is what it was) could now enlist the wealth, industry and manpower of Germany in pursuit of its ancient goal: hegemony over north-eastern Europe. By 1887, the future imperial chancellor Bernhard von Bülow was already musing on how to destroy Russia “for a generation”, cleanse Prussia of its Poles, set up a puppet Ukrainian state and take the Prussian armies to the banks of the Volga. This is the bloody Prussian – not German – thread that leads directly to the Nazi onslaught of 1941. In 1945, that centuries-long struggle was settled, in almost inconceivable violence. Half of East Elbia was ruthlessly stripped of Germans and handed over to Poles or Russians; the rump became the German Democratic Republic (GDR), a mere satrap of the Red Army.

So while it is easy and comfortable to say that the otherness of eastern Germany today is the result of that 40-year Soviet occupation, history says otherwise. East Elbia has always been different. Take the voting patterns: from 1871 to 1933, East Elbia outside Berlin (always a left-liberal political island) was the main electoral reservoir for the authoritarian right. The Prussian Conservative Party under the empire, the Deutschnationale Volkspartei until 1928 and the Nazis from 1930 depended on rural and small-town East Elbian voters. It was they who (just) swung things in 1933, by going 50-60 per cent for the “Hitler coalition”. Had all Germany voted like the Rhineland or Bavaria, Hitler and his Junker allies would have got nowhere close to a majority. Small wonder that Adenauer didn’t want East Elbia back and was secretly delighted to have it safely fenced off behind the Iron Curtain.

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West Germany (1949-90) – Germany shorn of Prussia – was, then, no historical fluke, and nor was the supra­national way it acted. This was the real Germany. But the hasty reunification of 1990 (there was no referendum or election on the issue) changed things. Why should the inhabitants of the former GDR, rather than Poles and Czechs, get immediate access to the wealth and benefits of the West? Because they were Germans. With that, the chancellor Helmut Kohl embraced the notion that being German overrode all considerations of social, economic or historical difference. He also subliminally revived the idea, common to the Second Empire and the Third Reich, that East Elbia was special and needed subsidising by the rich west of Germany. The director of the Bundesbank, Germany’s central bank, resigned in 1991 over this abandoning of economic sanity for political nationalism.

Since 1990, the former East Germany has received more than €2trn from the old West Germany, for a fast-ageing, shrinking and disproportionately male population of only 16 million, including Berlin. That’s the equivalent of a Greek bailout every year since 1990, and as a straight gift, not a loan. This represents a huge shift in financial priorities, overshadowing Germany’s annual net EU budget contribution (currently €15.5bn). In 1990, Kohl promised that western German aid would soon turn the new states into “blooming” areas, but they have become, instead, proof that age-old differences resist even the most gigantic subsidies.

Between 30 and 40 per cent of voters in East Elbia have declared over the past two years that at the general election, they intend to support either Alternative für Deutschland (Germany’s Ukip), Die Linke (heirs to the old East German Communist Party) or the all but openly neo-Nazi National Democratic Party (the NPD, currently represented in the Mecklenburg-Vorpommern state parliament). Though theoretical enemies, these three parties are united by cultural affinities: all despise economic liberalism, oppose Nato and the EU and want closer relations with Russia.

East Elbia no longer has the population to swing the entire German electorate of more than 61 million but many liberal western Germans are nervous. They recoil at the sight of anti-asylum-seeker attacks, which are proportionally far more common in East Elbia than in the west, or when they see Merkel heckled by right-wingers. They call East Elbia Dunkeldeutschland (“Dark Germany”) and joke bitterly that if Britain can have a Brexit, why can’t the old East Germans, whom they lump together under the name of Saxons, have a “Säxit”? But it’s no laughing matter. They know there are those only too aware of any anti-western drift in Germany and eager to give succour to it.

Alexander Saldostanov, the rabid leader of Russia’s “Night Wolves” bikers and a public friend of Vladimir Putin, recently told Germany’s bestselling daily, Bild, that he dreams of a grand union between Germany and Russia: “We have so much in common. You simply have to free yourself at last from America, that scourge of humanity. Together, we can, should and must take power.”

There’s no danger of that, but there is a sense in which eastern Europe is, to Germans, no longer “the other”. It’s the place whence natural gas flows from Russia, where labour is cheap but skilled and where the people are keen to work with Germany on setting up new sites of joint national memory. From Kaliningrad to Prague, museums and projects are springing up in which the horrors of the past are neither denied nor used as ammunition in today’s negotiations. In eastern Europe, perhaps because Russia is so close, the Germans are rarely made to feel guilty for their grandfathers’ sins. Meanwhile in the west, from Greece to Britain, people can’t resist mentioning the war whenever the Germans don’t act as desired.

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Germany’s resources are not infinite. Nor is the patience of the 40 per cent of Germans who “have net worths of essentially zero”, as Die Welt reported last year – largely because German home ownership rates are the lowest in the EU. They are disproportionately concentrated in the old east, the region that never had supranational, western European connections. From them come ever-louder voices saying that Germany’s EU contribution is too high. And with Britain out, the maths will look even worse to such voters. If south-western Germany’s taxes have to keep bailing out the country’s east, while also helping out the old and new EU lands, what is left for, say, the post-industrial Ruhr, which has financial and social problems of its own? There are tough choices ahead, and it’s not hard to imagine a day when Germany decides to aim its subsidies and investments where they seem most welcome. The old idea of Mitteleuropa – a multi-ethnic, German-centred Middle Europe, neither of the West nor of the East – no longer seems so antiquarian. Nothing would gladden Putin’s heart more.

So, yes, Merkel will win the election and will have a chance to revive the EU’s Franco-­German core. Yet the relative strengths of France and Germany are different now. As for their leaders, while Adenauer was a devoted Catholic Rhinelander, Merkel is a Lutheran vicar’s daughter from the east. Bonn was physically close to Paris, Brussels, The Hague, even London; Berlin is closer to Prague and Warsaw.

With Donald Trump’s wavering on Nato and his noisy anti-German protectionism, along with Brexit, the West may no longer seem vital to Germany’s future. During Merkel’s election debate with her main challenger, Martin Schulz, on 3 September, Brexit was not even mentioned. The old EU core will have to work to keep Germany anchored, resisting any new call from the east. Macron and German liberals know that; that’s why there will be no Franco-German split over Brexit just to sell us a few more Audis. The sooner David Davis and Liam Fox realise that the Germans have far bigger issues to deal with, the better.

James Hawes is the author of “The Shortest History of Germany” (Old Street Publishing)

This article first appeared in the 22 October 2012 issue of the New Statesman, Ai Weiwei guest-edit