Table of Contents
- 1 Ex-CDU politician involved
- 2 Possible entitlement to commission
- 3 E-Mail an Jens Spahn
- 4 Two billion lawsuits for corona masks that were never delivered
- 5 Criticism from the Federal Audit Office
- 6 No statement from the Ministry of Health
- 7 What was the original budget allocated for mask procurement in Germany at the start of the COVID-19 pandemic?
exclusive
It is the largest known lawsuit from the time of the corona pandemic: several suppliers want to get 480 million euros from the Ministry of Health for corona masks that have not yet been delivered. An ex-CDU politician is also involved.
This case could again be very expensive for taxpayers: several companies are suing the Ministry of Health in the Bonn regional court. The companies had not delivered any masks to the state within the original delivery period, but would be willing to deliver these masks later – at the then agreed price of 4.50 euros per FFP2 mask.
You can currently buy the masks much cheaper, starting at just ten cents – which would make a profit of 4.40 euros per mask. Even if they may not be successful in the first instance, the chances may be better in higher instances. The Cologne Higher Regional Court has already ruled in favor of suppliers in comparable cases.
Ex-CDU politician involved
This man is apparently one of those people who have hopes for the outcome of the lawsuit: former CDU politician Niels Korte. A company that he half-owned through an intermediary company also originally filed the lawsuit. It’s about the claims of suppliers who committed to delivering corona masks to the federal government in spring 2020, but did not deliver them on time. Nevertheless, they are now demanding 480 million euros from the federal government plus interest for masks that have not yet been delivered, as judge Jan Hendrik Büter listed at the beginning of a day of negotiations.
Büter also announced that a few weeks after Korte’s subsidiary Areal filed the lawsuit in November 2023, the plaintiff changed. The lawsuit is now being brought by the KLT company from Hamburg. The two bosses who were also present are Korte’s former business partners. But what role does Korte continue to play?
Possible entitlement to commission
When asked about this in front of the meeting room in Bonn, Korte said that he no longer had anything to do with the proceedings. When asked, the current plaintiffs KLT stated that the lawsuit concerns the fulfillment of the “Open House” contracts. The companies still wanted to deliver the masks agreed upon at the time. The crucial legal question is whether the ministry should have allowed a “possibility of subsequent delivery,” KLT continued. KLT did not answer questions about current agreements with Areal.
If NDR, WDR and Süddeutsche Zeitung also sent written questions to Korte, he had a media lawyer explain that Korte had neither an “initiating, aggregating or even controlling position” in the lawsuit, but that the Areal company was only involved in the proceedings in a “purely financing” manner. Their own interest exists in the form of a claim to commission payment, which Korte’s subsidiary Areal would be entitled to in the event of a victory in the legal proceedings.
E-Mail an Jens Spahn
Korte’s lawyer did not want to reveal how high this claim was. The media lawyer explained that Korte’s company Areal had “significant costs” for lawyers’ fees and court costs. If they win in court, Areal would only receive “a small fraction” of the claims asserted in the lawsuit. What that means in concrete terms remains unclear. “Confidentiality was agreed with regard to the amount of a commission payment claim,” said Korte’s media lawyer. However, “litigation financing” does not violate “legal regulations” or “other mandatory standards”.
Korte has had to deal with mask shops in the past. In 2021, Korte withdrew his candidacy for the Bundestag. He had received a contract to supply masks to the Ministry of Health – and had previously sent an email to party colleague Jens Spahn to obtain procurement documents. At the time, Korte firmly rejected allegations that political contacts had played a role in the award.
Two billion lawsuits for corona masks that were never delivered
In total, dozens of other delivery companies are suing the Bonn regional court against the federal government, with which they concluded contracts for the delivery of corona masks in 2020. The value of all lawsuits amounts to a total of 2.3 billion euros. According to an internal report from the federal government to the budget committee, the NDR, WDR and Süddeutscher Zeitung, the vast majority of these concern “cases in which masks were not delivered”. These cases alone have a dispute value of “around two billion euros,” as the internal report states.
All of these lawsuits concern the so-called “Open House” procedure of the then Ministry of Health under Jens Spahn. On March 27, 2020, the ministry published an announcement that anyone could deliver FFP2 masks to the federal government at a fixed unit price. Everyone could deliver as much as they wanted, the Ministry of Health was an “open house” for all mask suppliers. They wanted to ensure coverage with masks as quickly as possible.
Because the price that Spahn set was already extraordinarily high, the ministry was literally flooded with suppliers. More than 700 delivery promises were received within days. Instead of the 500 million euros earmarked for this in the budget, the announced deliveries now totaled 6.4 billion euros. However, one condition of the procedure was that the masks had to be delivered by April 30, 2020.
Criticism from the Federal Audit Office
However, many companies were unable to deliver at all because they were unable to obtain so many masks within a few weeks. Others allegedly wanted to deliver, but were not given a time for delivery, the ministry offered others appointments after April 30th, and for some the ministry finally refused payment because the quality of the masks was allegedly poor. In recent years, the Federal Audit Office has criticized the chaos of mask procurement under Jens Spahn in several reports.
No statement from the Ministry of Health
In the dispute with suppliers, the federal government has in many cases taken the position that anyone who has not delivered masks by the deadline has forfeited their claim under the delivery contract and therefore does not have to be paid. The Bonn Regional Court followed this view in many judgments – until the next higher instance, the Cologne Higher Regional Court (OLG), decided the dispute in favor of the suppliers in several cases.
According to the Higher Regional Court, the federal government could not simply withdraw from the “Open House” contract if the original delivery deadline was not met. Instead, according to the court, he should have given the suppliers a grace period, as is usual in general business transactions.
The Ministry of Health (BMG) did not answer questions about the lawsuit at the Bonn Regional Court. A spokesman said: “The BMG does not comment on ongoing proceedings.”
What was the original budget allocated for mask procurement in Germany at the start of the COVID-19 pandemic?
1. What was the initial budget for mask procurement in Germany during the COVID-19 pandemic?
2. How did the number of suppliers offering masks increase due to the high price set by the ministry?
3. What are some of the criticisms levied against Jens Spahn’s handling of mask procurement by the Federal Audit Office?
4. What is the current legal dispute between suppliers and the federal government regarding mask delivery contracts?
5. Does the Ministry of Health typically comment on ongoing legal proceedings?
