When the corona pandemic broke out, there was a desperate need for FFP2 masks. A federal ministry offered a lot of money – and many retailers procured surprisingly large quantities. That was an expensive affair.
The Federal Ministry of Health has suffered a defeat in the billion-dollar dispute over the payment of FFP2 masks. The federal government was ordered to pay around 86 million euros plus interest, the Cologne Higher Regional Court (OLG) announced (6 U 101/23), thus taking a different stance than the Bonn Regional Court, which had seen no obligation to pay in the first instance.
The lawsuit was brought by the trading company ILTS, which had taken part in a state tender in spring 2020 after the outbreak of the corona pandemic. The Federal Ministry of Health had chosen a so-called open-house procedure – everyone who took part was awarded the contract. An FFP2 mask cost 4.50 euros and a surgical mask 60 cents. In retrospect, the prices were far too high. However, protective masks were a scarce commodity on the world market at the time – the answer to the question of what price was appropriate was therefore difficult.
Many more companies took part in the tender than the ministry had assumed; they wanted to supply masks in large quantities. However, the ministry refused to accept a large proportion of the goods. According to the Cologne Higher Regional Court, this was not legal in the case of ILTS. The ruling could have a certain signal effect for other similar cases that are still pending. At the end of June, the Cologne Higher Regional Court had already ruled in another case that the mask supplier was entitled to the money.
Federal government threatens billion-dollar bill
The Federal Ministry of Health could face billions in costs. This puts pressure on the then Federal Minister of Health and current opposition politician Jens Spahn of the CDU. The mask issue is also being debated in the Bundestag; Spahn recently commented on this in a parliamentary debate and justified his actions at the time by saying that a decision had to be made in an emergency. They acted according to the motto that it is better to have than to need.
Lauterbach does not want a comparison
The current Federal Minister of Health, Karl Lauterbach (SPD), who inherited the matter from his predecessor, rejected a settlement with suing mask suppliers in June. He said at the time that they were considering taking the case to the Federal Court of Justice. Lawsuits with a total value of 2.3 billion euros are still pending in around 100 cases from simmering disputes over mask deliveries.
The trading company ILTS sold the federal government 15 million FFP2 masks and a large number of surgical masks at the time. According to their lawyer Till Veltmann, the delivery was initially scheduled for the end of April 2020, but then the Federal Ministry postponed the handover twice to later dates in May. The federal government then withdrew from its contract without setting a new deadline, says Veltmann. The Cologne court has now ruled that this was not legal.
Company lawyer calls for closure
“It is absurd that the Federal Republic is still trying to fend off the claims – this is causing the damage to increase,” says lawyer Veltmann, appealing to the Federal Ministry not to drag out the legal dispute any further. In the ILTS proceedings alone, one million euros in additional interest was incurred each month. “The Federal Republic should now draw a line under it and end the proceedings,” says the lawyer. The Cologne ruling is groundbreaking for other proceedings in the mask dispute. “This is a leading decision for almost all mask cases currently pending.”
The Cologne judges did not allow an appeal in the ruling. However, the Federal Ministry of Health could file a complaint against non-admission with the Federal Court of Justice (BGH). The Federal Ministry of Health left the question of whether it would do so unanswered on Friday afternoon.
Source: Stern
