The German Federal Ministry of Health has for the first time acknowledged in court that it overpaid for masks at the beginning of the COVID-19 crisis. Lawyers for the ministry stated in a court hearing at the Cologne Higher Regional Court (OLG) in late December 2024 that the ministry had committed a breach of price regulations for public contracts in a specific ordering procedure in early 2020, under the then Health Minister Jens Spahn (CDU). According to court documents, as reported by the business magazine Capital, the fixed price of 4.50 euros net per FFP2 mask, which the ministry had granted to a large number of suppliers, significantly exceeded the “permissible maximum price”. A price ordinance for public contracts requires that market-based prices be agreed upon for goods and services available on the market. Violations are treated as administrative offenses under the German Economic Criminal Code.
Until now, the health ministry had consistently defended the high prices by citing the chaotic market situation and mask shortage at the beginning of the pandemic. In October 2020, the ministry, still led by Spahn, denied in the German Bundestag that it had violated price regulations with the price it offered in the open-house procedure, and referred to subsequent price checks that confirmed this.
The new line in court, however, stated that the health ministry (BMG) was taking a procedural approach, saying that the presentation of the BMG before the OLG Cologne had only civil procedural reasons, and that it challenged the validity of the claim. By taking this new approach, the lawyers for Health Minister Karl Lauterbach (SPD) are trying to reduce the potential damage in the mask cases by attacking the then-granted purchase price of 4.50 euros as not legally compliant. Currently, around 100 lawsuits from suppliers with a total value of 2.3 billion euros are still pending.
In recent proceedings, the ministry has suffered several costly defeats. However, the OLG Cologne recently rejected the new argument on mask prices in a current case, and instead ordered the ministry to pay the full purchase price plus interest. In the matter, the court condemned the ministry to pay the full purchase price, including interest, for the masks.