The German has gotten bad news at a time when budget negotiations are difficult.
The Higher Regional Court in Cologne ruled in favor of a supplier of protective masks that the Federal Ministry of Health had ordered in 2020 at the beginning of the COVID-19 pandemic, but which it later refused to accept or pay for. The ministry will have to pay 85 million euros ($92 million), plus 33 million euros in late payment interest.
The resolution could well have a domino effect, as there are another hundred lawsuits pending in court. If the Health Ministry is defeated in those cases, it could face a record loss of 2. 3 billion euros in total.
The purchase of masks is already one of the biggest tax waste scandals in the history of the Federal Republic of Germany.
Flashback: In March 2020, the world was literally invaded by COVID-19. A vaccine was still months away and medical protective equipment was in short supply. Respirators meeting FFP2, KN95 or N95 standards, which are intended to offer reliable coverage, were opposed due to the virus, were desperately in short supply, and there was a global rush to stock up.
“China, which then produced around 80% of these masks, was confined and had suspended its exports,” recalled Simone Borchardt, a lawmaker for the center-right Christian Democratic Union (CDU), which then led the government. “In Germany we even came up with rules about how we can use the mask multiple times and whether we can just wash it. It was really crazy at the time,” Borchardt said in the lower chamber of parliament, the Bundestag, during a debate. in June.
In this situation, the then Minister of Health, Jens Spahn, proposed purchasing masks in a kind of “open house”. During this process, the relevant government company signs contracts with all interested companies so that each supplier has a chance.
Spahn’s idea that at the world mask festival he only needed to set the value high enough to ensure that Germany would get the product. Contrary to the recommendations of his ministry officials, who considered a value of 3 euros (about $3. 25 today) appropriate. ) per mask, Spahn set the price at 4. 50 euros for FFP2 masks and 0. 60 euros for surgical masks. The reaction exceeded expectations and, in the end, the ministry ended up with orders for 5. 7 billion masks.
“The value has been set too high,” said Martina Stamm-Fibich of the center-left Social Democratic Party (SPD), which at the time was Spahn’s CDU coalition partner and most recently leads Chancellor Olaf Scholz’s government. In my opinion, this already raises the question of how it is possible to calculate values without taking into account market developments and who bears political responsibility for it,” Stamm-Fibich said in the Bundestag.
Four years later, Spahn is now on the defensive: “With the existing knowledge, I would definitely make some decisions differently,” he admitted in the debate. “And yes, in hindsight, I can’t present the ‘open space procedure’ in such a situation. ”
However, he says, he has to make decisions temporarily in desperate times: human lives are at stake and doctors are asking for protection.
“We bought masks. Were they expensive? Yes. Was it chaotic? Yes, it was the same for each and every country in the world,” Spahn said. “I’m sure the price wasn’t too high, but I know a lot of other people who said, ‘Buy a mask at any price. ‘”
The Ministry of Health has calculated that if five million fitness professionals need two masks a day, more than 3,000 million masks would be needed per year.
But in the end, 1,700 million of the ordered masks were distributed. As of 2023, 1. 2 billion protective masks have been destroyed because their expiration date has passed.
What Spahn did not say is that the Ministry of Health had to conclude from the beginning that it had miscalculated. The “open house” procedure ended in May 2020 and ministry officials were looking for tactics to withdraw from as many contracts as possible.
An opportunity arose when some corporations failed to deliver the expected quality. In those cases, the branch unilaterally withdrew from the acquisition contract. The same happened with suppliers who were unable to deliver on time or provided a part of the mask within the agreed timeframe. date. The procurement contracts referred to a “fixed agreement”, which provided that all contractual obligations would cease after the delivery date.
But it is precisely this clause that the Higher Regional Court of Cologne declared invalid. The judges found that suppliers had suffered an “unreasonable disadvantage” and that the branch had been more flexible and then set a shorter deadline.
The Ministry of Health now needs the case to be clarified at the highest level through the Federal Court of Justice. If the court dismisses the case, Cologne’s ruling will be legally binding and will likely have an impact on other court proceedings. , with corresponding monetary consequences.
Beyond the legal fight, the political debate also continues, and it goes far beyond the value of medical masks. Were the government’s COVID-related measures, with its deep and widespread encroachments on basic rights, justified?What lessons can be learned from the pandemic and what deserves to be done in the future?
However, the parties of the ruling centre-left coalition (SPD, Greens and the neoliberal Free Democrats (FDP)) have not yet agreed on the appropriate form of a reassessment. All three parties are in favor of a citizens’ reform. ‘ council. The Greens and the FDP are also pushing for the creation of a commission of inquiry in the Bundestag, which would allow lawmakers and experts to be heard and make recommendations on new procedures.
This article was originally written in German.
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