The Federal Ministry of Health (BMG) has been ordered by the Administrative Court (VG) Cologne to publish various documents on mask procurement (ruling of January 19, 2023, Az. 13 K 2382/21 and 13 K 3485/21). This includes expert opinions and other opinions from EY, as well as emails between the former Health Minister Jens Spahn (CDU) and the entrepreneur Andrea Tandler. In March 2020, the Ministry of Health advertised the procurement of FFP2 protective masks with an open-house procedure, setting the fixed price per FFP2 mask at EUR 4.50. EY provided support, costing the BMG around 42 million euros. In total, more than a billion masks were delivered – much more than the BMG had planned.
There are still numerous (civil) proceedings pending before the Regional Court (LG) Bonn, where the main issue is whether the mask suppliers have fulfilled their contractual obligations or whether the masks were defective. The Administrative Court is convinced that the ongoing proceedings at the Bonn Regional Court will not change this.
The arguments put forward by the BMG, represented by Carsten Mensching (Redeker Sellner Dahs), regarding possible grounds for refusal did not convince the 13th chamber at the Cologne Administrative Court. The Chamber is convinced that the BMG only has to issue emails that do not concern business secrets.
At the end of 2020, an Offenburg entrepreneur, Joachim Lutz, submitted an application to the BMG for access to all reports and other statements by EY to obtain. Another person also complained to the VG Cologne, who, on the basis of a Spiegel-Research at the BMG, unsuccessfully requested the transmission of the e-mail traffic between the then Minister Spahn and Andrea Tandler. The two judgments are not yet final, but the parties involved can each submit an application for approval of the appeal, which would then be decided by the OVG Münster.
The BMG must provide information on mask procurement to get closer to the truth of how taxpayers’ money was wasted enormously and the subsequent breach of contract.
