OPEN E-MAIL LETTER FROM ANDREAS MEYER TO THE CHAIRMAN OF THE COUNCIL OF THE CONTERGAN FOUNDATION, CHRISTOPH LINZBACH (BMFSFJ), DATED 30.4.2019.
Please watch this space for the upcoming translation of the Open Letter to Christoph Linzbach into English.
Ordinary Member of the Council
of the Contergan Foundation for People with Disabilities
Dohmengasse 7, 50829 Cologne
Telephone: 0172 / 2905974,Telefax: 0221 / 9505102
Open letter via e-mail to:
Federal Ministry for Family Affairs, Senior Citizens, Women and Youth
Assistant State Secretary Christoph Linzbach
Chairman of the Council of the Contergan Foundation
Head of Project Group Trusts & Foundations
Directorate-General 5 “Children and Youth”
Vascular Study (Open letter including the investigation by GSK Stockmann etc.; with reference to your e-mail dated 30.4.2019)
Dear Mr Linzbach,
Thank you very much for your notification.
You are the Chairman of the Council of the Contergan Foundation and at the same time Head of Project Group Trusts & Foundations in Directorate-General 5 “Children and Youth” of the Federal Ministry for Family Affairs (BMFSFJ).
As Chairman of the Council of the Foundation it is your responsibility, together with us other representatives on the Council of the Foundation, to control the Management Board and take decisions on all fundamental issues concerning the Foundation.
In this, you and we other Members of the Council must work in accordance with the purpose of the Foundation according to § 2 No. 1 and No. 2 ContStifG, to provide benefits to those persons eligible for them (No. 1) and to provide assistance by promoting or conducting research and trial projects in order to support their participation in community life and to alleviate the long term impacts of incurred impairments (No. 2).
The Contergan Foundation is autonomous.
Irrespective of this, the Foundation is subject to the supervision of the Federal Ministry for Family Affairs (BMFSFJ).
In the event that the Vascular Study should again be an agenda item, I presume that a decision about costs will by taken by the Council of the Foundation to the effect that the costs amounting to 1,085,913.96 € proposed by Professor Dr. Gunnar Lund for the Vascular Study will be shouldered by the Contergan Foundation.
It also remains clear that the Vascular Study will be conducted in accordance with the decision.
At most, additions and clarifications will be permitted.
I further presume that any agreements between the Management Board of the Contergan Foundation, the Chairman of the Council of the Foundation, the representatives of the other ministries and the Foundation’s business office made outside of the decision-making organ shall not be binding.
Accordingly, I presume that the experts previously selected to conduct the Vascular Study will continue to conduct the study.
For me, these experts are Professor Dr. Gunnar Lund, Dr. Dr. Peter Klein-Weigel and Dr. Rudolf Beyer.
The study will be led, as previously foreseen, by Professor Dr. Gunnar Lund and/or one or both of the other two experts.
Further, I kindly request that these gentlemen be invited to attend the Vascular Study agenda item at the meeting of the Council on 5.6.2019 with speaking rights.
The physician and Contergan victim Frau Bettina Ehrt should also be invited to attend with speaking rights.
I also kindly request that the Contergan victim and Professor of Innovation Management Dr. Carsten Dreher should be invited to attend with speaking rights for the design of the framework conditions of the Vascular Study, in order to ensure a rapid start and successful implementation.
At the same time I reserve the right to reduce or expand the circle of experts at short notice based on consultation with my colleague Mr Christian Stürmer.
Due to lack of time, I have been unable to submit this paper to the above-mentioned and possibly subsequent group of persons to read in advance.
Therefore, neither my request to invite these experts nor their acceptance of the invitation would imply that they are in agreement with the contents of this paper.
My request to invite the above-mentioned group of persons is and was solely and purely for the purpose of assisting the Vascular Study, finally and against all external interests, to reach a successful conclusion that serves the interests of the Contergan victims.
B. No tenders
I also take it that no tendering process will be carried out.
1. The experts enjoy the trust of the beneficiaries
Just as with the study “Contergan – Enquiries to be carried out repeatedly with regard to problems, specific needs and support deficits of Contergan victims – Final report to the Contergan Foundation for People with Disabilities” from the Institute of Gerontology at the University of Heidelberg on 21.12.2012 (Heidelberg Study), the above-mentioned experts are known to and accepted by a large number of the victims, so that a fundamental pillar of the beneficiaries’ acceptance of participation in this study will remain in place.
2. Feeling of trust has already resulted in commissioning without a tender
And I am sure that you can also recall that the report “Contergan – Expert opinion on the payment of benefits to beneficiaries under the Contergan Foundation Act – Report to the Contergan Foundation for People with Disabilities” dated 12.2.2016 was also commissioned to the Institute of Gerontology at the University of Heidelberg by the Contergan Foundation – without a tender! – on account of the acceptance of the experts there on the part of the beneficiaries.
3. Convergence of the interests of ministerial officials from the BMFSFJ represented on the Council of the Foundation with the interests of the Grünenthal company
Furthermore, in the view of the beneficiaries, your ministry (BMFSFJ) can no longer enjoy trust in its ability to provide the beneficiaries with a contract partner who serves their interests and is free of Grünenthal’s interests through an “independent tendering process”.
The same applies to the other ministries represented on the Council of the Foundation.
The following facts demonstrate this:
a. Piper Study
I wish to remind you and your ministry of the study by the law firm DLA Piper “International study on benefits and claims of persons injured by Thalidomide in 21 countries” dated 31.1.2012 (Piper Study), which was also commissioned by the Contergan Foundation through a supposedly “independent” tendering process.
At that time, the then head of Directorate-General 3 “Senior Citizens” in your ministry (BMFSFJ), Mr Dieter Hackler, was Chairman of the Council of the Contergan Foundation.
The beneficiaries from England quite justifiably refused to participate in this study.
In particular Mr Hackler (now retired, and elected by the Council of the Foundation as Chairman of the Contergan Foundation on 5.12.2018) will undoubtedly recall the reason very well:
The law firm DLA Piper had not only represented the Grünenthal company in numerous cases abroad, but in particular it had also advised and represented the Diageo company in the compensation negotiations between Diageo and the representatives of the English Thalidomide victims (the Thalidomide Trust, a body comparable with a foundation run by the victims themselves).
Diageo is the legal successor to the Distillers Company in England.
In the 1960s, the Distillers Company was Grünenthal’s licensee for the manufacture and distribution of Thalidomide in England, and was thus responsible for the impairments to the Thalidomide victims living there.
After massive protests from the beneficiaries, DLA Piper admitted on page 221 in version dated 31.3.2011 of the study, which appeared in numerous successive versions:
“As a further reason for possible conflicts of interest, the Thalidomide Trust stated that DLA Piper had represented Diageo plc with reference to claims by Thalidomide victims. It is the case that a team based in London was active on behalf of Diageo plc or Distillers – in both cases companies that are not legally connected with Grünenthal in any form – in this context. However, at no time was the team active in opposition to the Thalidomide Trust.”
During the period in office of Dieter Hackler (then BMFSFJ) as Chairman of the Council of the Contergan Foundation, the study was nevertheless brought to a conclusion by DLA Piper and approved with the exclusion of the Foundation’s Council.
DLA Piper was paid 227,885 € by the Contergan Foundation as remuneration for this study.
Under Mr Hackler (BMFSFJ) as the then Chairman of the Council of the Contergan Foundation, your ministry permitted the globally-active law firm of the legal successor company of a Grünenthal licensee, sharing the same worldwide monetary and juridical interests as Grünenthal in relation to the Thalidomide victims, to be commissioned to conduct a study. Moreover, this study – under the name of the Contergan Foundation, a state-supervised body seemingly independent of Grünenthal and Diageo – also interrogated the Thalidomide victims worldwide about their claims and the benefits paid out to them in their home countries, whereby this information could at the same time benefit both Grünenthal and Diageo in possible legal disputes with victims abroad over the calculation of compensation amounts. These facts raise for me not only the question of whether this money (227,885 €) was not simply spent for purposes foreign to the Foundation (as a reminder: the other ministry representatives also voted on it).
In view of the above, the victims can expect the Contergan Foundation to finally also approve the costs amounting to 1,085,913.96 € for a study that is so important for their health and life as the Vascular Study.
Because the purpose of the Foundation according to § 2 Clause 1 No. 2 of the Contergan Foundation Act unambiguously requires assistance to the victims “by promoting or conducting research and trial projects in order to support their participation in community life and to alleviate the long term impacts of incurred impairments”.
And for the victims it would be a support for their participation in community life, and in particular an alleviation of the impairments arising from long term impacts, if the beneficiaries could be informed through the study about hazards to life and other health risks that may possibly threaten them, and if at the same time these risks could be reflected in the Contergan Foundation’s points table.
At the same time, this also means that, when the Vascular Study is conducted, the funds used for the Contergan Foundation’s other services must not be touched in order to pay for the Vascular Study!
b. Concealment of the BMFSFJ’s own responsibility for the supposed “discovery of files at Grünenthal”
aa. The final report on the supposed “discovery of files at Grünenthal”
And how little care your ministry took to avoid even the appearance of a concealment of its own responsibility for the “discovery of files at Grünenthal” is shown in particular by the way it has handled the results of the investigation into the (supposed) “discovery of files of the Contergan Foundation in the archives of Grünenthal GmbH – Final report of investigation of the facts” dated 6.12.2017 (“final report”) by the lawyers Dr. Jan Hennig and Dr. Nicola Wiesinger of the law firm GSK Stockmann PartGmbB (hereinafter: “GSK Stockmann”), commissioned by the Contergan Foundation:
GSK Stockmann was commissioned to clarify the background and evaluate with regard to data protection law, why files of affected persons from the sphere of the Medical Commission of the Contergan Foundation were discovered in the archives of the Grünenthal company and then, on 10.10.2014, handed over to the Contergan Foundation by lawyers on behalf of the Grünenthal company.
After the evaluation of the file materials by GSK Stockmann, the files “discovered” at Grünenthal were sent to each affected person by the Management Board of the Foundation.
The thankfully meticulously summarised results of the detailed and intensive investigations contained in the final report by GSK Stockmann raise questions about the responsibility of the Federal Ministry for Family Affairs, as supervisor of the Contergan Foundation, for the facts that were uncovered.
In the view of the undersigned it is particularly striking that, for over 30 years after the entry into force of the Contergan Foundation Act in 1972, Herbert Wartensleben, the corporate lawyer and legal representative of the injuring party, the Grünenthal company, had access to the files of the beneficiaries in the Contergan Foundation, which was established by the Federal Government, as Chairman of its Medical Commission, and in consequence, at least through his person, the Grünenthal company also had access to the files.
In his dual function as the Chairman of the Medical Commission and simultaneously for many years the legal representative of the Grünenthal company, Wartensleben was also in a position to participate in decisions within the Medical Commission of the Contergan Foundation on which affected persons were to be recognised as Contergan victims and how high their benefits from the Foundation should be.
And all this happened for 30 years, without being contradicted, before the eyes of the supervisor of the Contergan Foundation, the Federal Ministry for Family Affairs (BMFSFJ), which ever since the establishment of the Foundation in 1972 and until today has always and without exception provided the Chairpersons of the Foundation’s Council in the shape of its ministerial officials.
In the final report, page 9 marginal number 25, it is noted:
“The question of how these documents found their way into Grünenthal’s company archives has not been entirely convincingly answered by either Grünenthal or Attorney Wartensleben.”
bb. The explanation of the real background of the supposed “discovery of files at Grünenthal”
However, after a thorough examination of the files that were returned to each affected person by the Management Board of the Contergan Foundation after the “discovery”, it was apparent that the Contergan Foundation itself – through the members of the Medical Commission and the staff at its business office – had sent victims’ files to Attorney Wartensleben at the Grünenthal company’s address.
These facts were the subject of a discussion of GSK Stockmann’s final report at the 104th meeting of the Council on 5.4.2017 (page 12 of the minutes):
“Mr Meyer asked Dr. Hennig the following 2 questions, reading both questions from the notes he had brought with him:
In your searches, did you find indications that the documents supposedly ‘discovered’ at Grünenthal were sent to Mr Wartensleben at the Grünenthal company’s address by staff at the business office or the experts on the Medical Commission?
Was it normal practice for the experts on the Medical Commission and the business office of the Contergan Foundation to send documents to Mr Wartensleben at the Grünenthal company’s address?”
On page 13 of the minutes of the 104th meeting of the Council on 5.4.2017, the reply to these questions by Dr. Hennig of GSK Stockmann is recorded as follows:
“The Chairman of the Council of the Foundation added that a subsequent written reply to this question would be possible.
Mr Meyer replied that the documents available to him speak their own language. To prove this, he read out a letter from the office of the Contergan Foundation to Mr Wartensleben with the address of the Grünenthal company and a letter from an expert on the Medical Commission of the Contergan Foundation to Mr Wartensleben with the address of the Grünenthal company. Mr Meyer read both letters from the notes he had brought with him..
Following this, he requested to expand the final report accordingly.
Dr. Hennig made clear that the letter reflected common practice at that time.
Mr Wartensleben was Chairman of the Medical Commission but was based at the Grünenthal company. The files gave the impression that all those involved at that time regarded this as customary and normal.
Questionable, on the other hand, was what was done after 1983. After the cessation of his activities as corporate attorney for Grünenthal in 1983, Mr Wartensleben would have had to have taken the files with him.
The Chairman of the Council of the Contergan Foundation made the proposal to the Council, that the final report be expanded accordingly.”
In view of these facts, the unavoidable question arises of why representatives of the Federal Ministry for Family Affairs continue to speak of a “discovery” when the administrative bodies of the Contergan Foundation themselves, over which they have supervision, were routinely sending these files to Grünenthal.
However, the beneficiaries and their representatives did not know this. Until the now clarified “discovery of files”, it had been assumed even by the most critical Contergan victims that Attorney Wartensleben performed his duties as Chairman of the Medical Commission in the rooms of the then business office of the Contergan Foundation in Bonn at the former Lastenausgleichsbank (now KfW-Bank).
The “discovery” is not a discovery at all, because all those involved knew or should have known how the files found their way to the Grünenthal company.
According to my personal estimation, an enquiry from the Land Commissioner for Data Protection and Freedom of Information in North Rhine-Westphalia (LDI NRW) to Attorney Wartensleben in 2013 – as to whether he was still in possession of files of Contergan victims from his activities as Chairman of one of the two Medical Commissions – caused such concern, both on the part of Grünenthal/Wartensleben and on the part of the Family Affairs Ministry/Contergan Foundation, that it was felt necessary to invent the story of the supposed “discovery of files” in order to conceal the fact – which was known to everyone! – that it was normal practice for the files and documents of the beneficiaries to be regularly sent to Grünenthal’s address by the staff at the business office and the members of the Medical Commission.
I also presume that GSK Stockmann itself was an unwilling victim of the invented “discovery of files” story from the beginning, because Dr. Hennig quite openly and naturally gave the necessary answers in response to my question on the subject.
As specialists in data protection law, GSK Stockmann concentrated on the fact that the files remained in the archives of the Grünenthal company after 1983, rather than the fact – which is more significant for those of us who are affected by the Contergan story – that the business office and Medical Commission of the Contergan Foundation themselves routinely sent the victims’ files to Grünenthal.
cc. Delaying of the additional concretisation of the final report in terms of a clarification of the content
The final report was again discussed at the 107th meeting of the Council on 23.5.2018.
In contrast to the agreement made at the 104th meeting of the Council on 5.4.2017 to make additions to the final report in the form of a concretisation in terms of a clarification of the content (see above), the Chairman of the Council of the Foundation initially attempted to thwart this clarification.
Thus, on page 10-11 of the minutes of the 107th meeting of the Council on 23.5.2018, signed by Council Chairman Christoph Linzbach (BMFSFJ) but not yet approved, the following was recorded:
“Mr Meyer expressed his gratitude that one had learned from the data scandal (meaning the file scandal, my parenthesis).
But in his opinion, elucidation also required a clear formulation of the routes by which the files found their way to Mr Wartensleben.
Mr Meyer therefore proposed to include this in the report.
The Chairman of the Council of the Foundation considered this to be unnecessary.
The report was provided by Dr. Hennig.
He asked if he [Dr. Hennig] was in a position to adapt the report.
Dr. Hennig answered that a clarification of the content would be no problem.
Mr Meyer’s views would be covered by the findings from the final report.
The knowledge about the sending of files to Mr Wartensleben could be summarised in the report.
Mr Meyer declared himself to be in agreement with a concretisation of the report in the sense that had been discussed.”
Since, 7 months later at the 108th meeting of the Council on 5.12.2018, the promised concretisation of the final report had still not been made, it was necessary for me as victims’ representative to call it to mind again.
This was recorded on page 23 of the minutes of the above meeting, again signed by Council Chairman Christoph Linzbach (BMFSFJ) but not yet approved, as follows:
“Furthermore, at the 107th meeting of the Council, Mr Meyer was reported to have asked Dr. Hennig if it would be possible for a clarification of how the files of the affected persons had found their way to Grünenthal to be included in the final report on the discovery of files.
Dr. Hennig was reported to have answered this question in the affirmative.
On the question regarding the clarification by the law firm GSK Stockmann + Kollegen, the Chairwoman of the Management Board said that a request for this had been sent to Dr. Hennig, but no reply was yet available.”
The reply from the Chairwoman of the Board was not contradicted by the Chairman of the Council (BMFSFJ) and the ministerial officials from the other ministries (BMF, BMAS).
It is certainly strange when a business law firm like GSK Stockmann, in such an important investigation for all Contergan victims as the final report, declares that “a clarification of the content would be no problem”, but after the absence of a clarification for more than 3 years – the clarification was first requested in the Council of the Foundation on 5.4.2017! – there should not even be a reply to a third request from the Managing Board that commissioned it!
In my opinion, the ministerial officials of the BMFSFJ and the other ministries (BMF, BMAS) serving on the Council of the Foundation wish to systematically thwart the additional concretisation of the final report in terms of a clarification of the content which had been promised on two occasions.
Because this clarification would make clear that the supposed “discovery of files” – without the knowledge of GSK Stockmann! – was only a cleverly-staged manoeuvre to conceal the (joint) responsibility of the Federal Ministry for Family Affairs, the supervisor of the Contergan Foundation, for the Contergan Foundation’s collusion with Grünenthal.
dd. Concealment of the appointment of Attorney Herbert Wartensleben to the office of Chairman of the Medical Commission in 1972 by the then Federal Minister for Family Affairs (at that time still the Federal Minister for Health, BMJFG)
And there is something decisive to conceal!
It was thus recorded in the minutes of the 104th meeting of the Council on 5.4.2017, on pages 11 and 12:
“Mr Meyer enquired of Dr. Hennig if he had received any indications concerning on whose instigation Mr Wartensleben had acted.
In this context he made reference to page 2 paragraph 3 sentences 1 and 2 of the letter from the law firm Taylor Wessing dated 19.12.2014 (Grünenthal’s lawyers, my parenthesis).
Dr. Hennig quoted the passage referred to:
‘As far as our client is aware, the appointment of Mr Wartensleben as Chairman of the Medical Commission of the Contergan Foundation in 1972 was made by the then Federal Minister for Health.
At that time it was already generally known that Mr Wartensleben was employed as Grünenthal’s corporate lawyer.’
Dr. Hennig emphasised that, to his knowledge, the appointment was a matter for the Foundation.
Mr Meyer pointed out that, in view of this, the responsibility of the then Minister should have been mentioned in the final report.
He (Mr Meyer, my parenthesis) requested that the above-mentioned quotation should be included in the report.
The Chairman of the Council of the Foundation pointed out that the assumption of a political responsibility would probably be too far-fetched.”
Which “political responsibility would probably be too far-fetched” should be spelled out:
The Federal Minister for Youth, Family and Health, Käte Strobel (SPD) held a ceremonial speech at the inaugural meeting of the Council of the Contergan Foundation on 6 December 1972.
Attorney Herbert Wartensleben was present at this meeting.
At the same meeting, Wartensleben was appointed Chairman of the Medical Commissions.
At the 3rd meeting of the Council on 18 June 1973, the Federal Minister for Family Affairs, Dr. Katharina Focke (SPD), devoted her whole attention to the impairment points table.
This table provides the basis for assessing the degree of impairment of the affected persons, and thus the amount of their pensions.
Wartensleben’s presence is also recorded in these minutes.
Some time later, Wartensleben was the co-author of the then impairment points table.
Wartensleben’s parallel function as the head of Grünenthal’s legal department was known to all participants in both meetings at the time.
The Federal Ministry for Family Affairs (BMFSFJ) and the Federal Ministry for Health (BMG) were merged in 1969 and separated again in 1991.
But perhaps also the “political responsibility would probably be too far-fetched” because, at the present time, a serving Federal Minister for Family Affairs belongs to the SPD Parliamentary Group.
As may be expected, these facts about the responsibility for the original circumstances underlying the supposed discovery of files also have yet to appear in the final report.
ee. Delaying the enforcement of cost reimbursement for the necessary searches to elucidate the supposed “discovery of files” with respect to the Grünenthal company; withholding of the necessary Information that affected persons and not the Foundation must bring law suits against Grünenthal due to possible breaches of data protection; and the enforceability of Wartensleben’s criminal responsibility for the circumstances of the “discovery of files”
Since the 98th meeting of the Council on 9.12.2014, and in particular at the Foundation’s Council meetings in 2015, regular reports were given about the progress of the searches on the “discovery of files” by Attorney Dr. Jan Hennig of GSK Stockmann.
Since the first reporting, the wish was consistently expressed by the beneficiaries in the auditorium of the open sessions that both Attorney Herbert Wartensleben and the Grünenthal company should be prosecuted on account of the events around the “discovery of files” and held accountable for the Foundation’s expenses for the necessary searches by GSK Stockmann arising from the scandal around the “discovery of files”.
This was repeatedly promised to the beneficiaries by the Foundation’s Board.
The ministerial representatives also left no doubt on the matter.
The enforcement of claims relating to data protection law was also discussed.
aaa. Delaying up till now of the enforcement of claims of recourse by the Contergan Foundation against Grünenthal for the appraisal of the “discovery of files”
On this subject, the following is recorded on page 23 of the minutes of the 108th meeting of the Council on 5.12.2018:
“Mr Meyer also stated that consideration had been given in the past for the Grünenthal company to contribute to the costs for the appraisal of the discovery of files.
This had also been considered once by the law firm GSK Stockmann + Kollegen.
Mr Meyer asked if the Management Board had considered this and if a result was available.”
The reply of the Chairwoman of the Management Board is recorded on page 23 as follows:
“With reference to the question of a cost contribution by the Grünenthal company, the Chairwoman of the Management Board replied that this idea had been rejected by the Board because a large proportion of the affected persons did not want the Foundation to be brought into association with Grünenthal.
This condition also came from the Council of the Foundation.
The Chairwoman of the Management Board further stated that, in her personal opinion, Grünenthal should definitely contribute.”
It is minuted further down on page 23:
“He (Mr Meyer, my parenthesis) added that it was not the general will of the affected persons that Grünenthal should not make a financial contribution to elucidating the discovery of files.
He was surprised that this should have been rejected.
A decision on this matter should have been taken in the Council of the Foundation.”
“Mrs Hudelmaier expressed the wish to the Council of the Foundation to produce a guideline on the principles of how grants from the Grünenthal company should be handled.
Mr Stürmer replied that the Grünenthal company should be required to make as much of a financial contribution as possible without making the Foundation dependent on it.
The Chairman of the Council of the Foundation said that he had understood the discussion on this subject differently up to now, but that he was open to taking a new resolution.”
It is very interesting that the neither the Contergan-damaged member of the Management Board of the Contergan Foundation nor the former Chairwoman of the National Association, Margit Hudelmaier, were apparently able to tell the difference between recourse claims and grants from the Grünenthal company.
The remarkable thing about it is that, based on this confusion, she wanted to bring about a fundamental decision on how the Foundation’s Board was to behave in future.
It is my suspicion that it was intended as a way of justifying Grünenthal’s payments to the experts on the Medical Commission in future.
On pages 23-24 of the above-mentioned minutes, the topic was further pursued as follows:
“Mr Meyer said that he could not recall any meeting of the Council in which payments from Grünenthal towards the final report of the law firm GSK Stockmann + Kollegen had been rejected.
Mr Meyer would also have always argued against payments to the Medical Commission.
If Grünenthal were interested in doing a good deed, the company should make contributions to the special payments account, so that the money would flow directly to the affected persons and not to the Medical Commission.
Furthermore, Mr Meyer requested to examine whether it would be possible to sue for money.”
At this point the Chairman of the Council of the Foundation, Christoph Linzbach (BMFSFJ), intervened (page 24):
“The Chairman of the Council of the Foundation emphasised that at the next meeting of the Council a fundamental decision was to be taken regarding cost contributions and payment of costs by Grünenthal for all projects with a connection to Grünenthal.
Whether action could be taken to sue for money would be another subject.
Here, the main question would be how much chance of success such an action would have.”
I replied to these statements by Mr Linzbach (BMFSFJ) (page 24):
“Mr Meyer pointed out that the law firm GSK Stockmann + Kollegen could assess this, and expressed the hope that no limitation periods had yet elapsed.”
At this point, you, Mr Linzbach (BMFSFJ), in your capacity as Chairman of the decision-making and control body of the Contergan Foundation, began to speak of a new “fundamental decision on co-financing by the Grünenthal company”:
“The Chairman of the Council of the Foundation noted that for the next meeting of the Council a new fundamental decision on co-financing by the Grünenthal company would be prepared.
The subject of legal action due to the discovery of files would have to be considered separately.”
Dear Mr Linzbach, I find it extremely strange that you, as Chairman of the decision-making and control body of the Contergan Foundation, during a discussion about the necessity of enforcing recourse claims against Grünenthal for the “discovery of files”, should support the Foundation’s Board in preparing a fundamental decision about “grants” or “co-financing” by Grünenthal.
As head of the Project Group Trusts & Foundations in Directorate-General 5 “Children and Youth” in the Federal Ministry for Family Affairs (BMFSFJ), you know very well that “grants” and voluntary “co-financing” by a company are tax deductible if appropriate.
Recourse payments on the other hand are not tax deductible.
I also reminded you of this fact (page 24):
“Mr Meyer said that the matter concerned the fact that the Foundation had suffered a loss which should be made good by Grünenthal.
If necessary, legal action must be taken up to the highest court.”
With your approach, your are attempting to make a recourse for injury caused by Grünenthal presentable to the Contergan victims and the taxpayer as a voluntary act of generosity by the injuring party.
It could not be more obvious that you and your ministry are being submerged in the interests of Grünenthal!
I wish to remind you and your colleagues from the two other ministries on the Council of the Foundation of § 5 Paragraph 4 Clause 3 of the Foundation’s statutes:
“The members of the Council of the Foundation may not demand or accept grants from third parties or other benefits in connection with their activity either for themselves or for other persons, or provide unjustified benefits to third parties.”
And to declare as a grant something that is really a recourse payment is to provide an unjustified benefit for the third party “Grünenthal” within the meaning of the above-cited regulation!
And the deliberate or grossly negligent failure to observe the limitation period for a previously enforceable claim is also an unjustified benefit for the third party “Grünenthal”.
Should a limitation period for this and possible further claims be missed, deliberately or through gross negligence, claims for damages by the Foundation against those responsible in the organs and administration of the Foundation would come into question.
As the supposedly discovered files were already handed over to the Contergan Foundation by Grünenthal’s lawyers on 10.10.2014, and as the full extent of the injury became clear with the final report from GSK Stockmann on 6.12.2017, the 3-year limitation period has been ticking away since then.
Since it is quite apparent that – with the toleration of the supervising ministry (BMFSFJ) and the other ministerial representatives (BMF, BMAS) – absolutely nothing has happened towards any preparation for the enforcement of possible claims on the part of the Management Board of the Foundation, the suspicion arises that, by purposely allowing the limitation period to elapse by omission, the Management Board, the Chairman of the Council (BMFSFJ) and the other ministerial representatives (BMF, BMAS) jointly intend to favour Grünenthal, deliberately or through gross negligence, with this unjustified benefit.
Since, in view of the fact that it may soon become impossible for the Contergan Foundation to obtain recourse from Grünenthal or Wartensleben for the files scandal, the Foundation and thus the Federal Republic of Germany may suffer a loss amounting at least to the cost of expenditures for the work of GSK Stockmann (approx. 300,000 €), the possible scenario of asserting claims for damages against the above-mentioned group of persons again emerges.
The question also remains of how far Grünenthal, the BMFSFJ and the other ministries (BMF, BMAS) may be legally liable for the scenario of the staged “discovery of files”.
Could it be that the need to commission a law firm such as GSK Stockmann to elucidate an invented discovery of files – unnecessary from the very start because it was staged by Grünenthal and BMFSFJ! – represents a misappropriation of the costs (approx. 300,000 €) arising for the Contergan Foundation or the Federal Republic of Germany?
And at this point I wish to emphasise once again:
I remain convinced that GSK Stockmann themselves were unwillingly caught in the crossfire of this plot.
The question only remains of who will claim recourse on behalf of the Contergan Foundation or the Federal Republic of Germany from the above-mentioned group of persons?
The victims’ representatives on the Council of the Foundation as the representatives of other injured parties?
Or Parliament through a Commission of Enquiry?
bbb. Withholding of the necessary information that the affected persons themselves and not the Foundation would have to take action against Grünenthal due to possible breaches of data protection?
On this subject, the following was recorded on page 24 of the minutes of the 108th meeting of the Council on 5.12.2018:
„The Chairwoman of the Management Board added that, with regard to the files, the affected persons themselves and not the Foundation would have had to take action against Grünenthal due to possible breaches of data protection.
This was the result of advice received from GSK Stockmann + Kollegen and had also been communicated accordingly.
So far, no action had been brought by affected persons.”
Somewhat further down on the same page, it continued as follows:
“Mr Meyer returned to the point made by the Chairwoman of the Management Board that the affected persons themselves would have had to take action against the Grünenthal company instead of the Foundation.
This information had not appeared anywhere.
The Chairwoman of the Management Board drew Mr Meyer’s attention to the letter about the discovery of files.
Mr Meyer asked to be shown this letter again.
The Grünenthal company should pay for the damage arising from the discovery of files, and Mr Meyer would have expected from the Management Board that it should have initiated this.
The Chairman of the Council of the Foundation noted that this subject would have to be discussed at the next meeting of the Council.
The Board/ business office was instructed, with the involvement of the law firm GSK Stockmann + Kollegen, to examine any possible limitation periods.
Mr Meyer pointed out that, if appropriate, a special meeting or a circulation procedure would have to be called immediately.
Mr Meyer continued that he had seen the letter dated 14 November 2015 and that it contained no information that any action would have had to be initiated by the affected persons.
Mr Meyer was assured that the business office would examine it and provide the relevant information after the meeting.”
The above-mentioned letter of 14.11.2015 was actually dated 5.11.2015.
Until today, I have still not received the promised examination by the business office and the promised information after the meeting.
Considering that possible limitation periods could elapse for the affected persons, I can only speak of a grossly negligent or even deliberate withholding of the necessary information about the preconditions for bringing a possible action on the part of the affected persons.
The letter dated 5.11.2015 that is available to me concerning the discovery of files in no way contains the information promised by the Chairwoman of the Management Board regarding the necessary preconditions for bringing an action against Grünenthal etc.
The letter is addressed to me, because I was also affected by the supposed discovery of files.
It is therefore no surprise to me that, up to now, no action has been brought by affected persons.
I am also interested in the question of how the Chairwoman of the Management Board could know whether any, or how many, actions may have been brought against Grünenthal.
Did Grünenthal give her regular status reports about actions brought against Grünenthal by affected persons due to breaches of data protection?
Thus, the above remarks about favouring the Grünenthal company also apply here.
ccc. Could Attorney Wartensleben be realistically charged with criminal responsibility for the files scandal?
This seems doubtful.
Attorney Wartensleben left his office as Chairman of the Medical Commission at the end of 2003.
By the time of the handover of the supposedly discovered files by Grünenthal’s lawyers to the Contergan Foundation on 10.10.2014, 11 years had already elapsed.
The normal limitation period is 3 years.
On behalf of the Contergan Foundation, GSK Stockmann sent a progress report current to 14 February 2017 to the relevant public prosecutor’s office (StA Aachen) on 14 February 2017 and informed it that there were indications that Attorney Wartensleben had made himself criminally liable according to § 43 Para. 1 No. 1, 1. Case BDSG 1990 and that an offence according to § 43 Para. 2 Number 1, 2. Case BDSG 2003 also came into question. For this reason, the StA Aachen was requested to pursue further investigations.
The StA informed GSK Stockmann in a letter dated 1 March 2017 that it had terminated proceedings according to § 170 Para. 2 StPO without pursuing investigations, because all criminally-relevant actions had taken place more than 3 years in the past. In view of the fact that the limitation period had thus elapsed, the StA said that it was prevented from pursuing investigations (see letter from the StA on 1 March 2017, see Appendix F 5).
Similarly, GSK Stockmann sent the StA the updated final report dated 24 March 2017 in a letter dated 10 April 2017 and pointed out that it appeared from the report that employees of Grünenthal had actively used the documents at least in 2009 and that these had been newly categorised in 2011. GSK pointed out that this gave rise to indications of a criminal offence according to § 43 Para. 1 Number 1, 1. Case BDSG 1990 as well as an offence according to § 43 Para. 2 Number 1, 2. Case BDSG 2003.
The StA then informed GSK Stockmann, in a letter dated 25 April 2017, that it had again reviewed the factual and legal position in the light of the letter from GSK Stockmann, but with the result that the termination of proceedings according to § 170 Para. 2 StPO still had to remain valid. Even on the basis of the new information, there were no actions for which the limitation period had not lapsed (see letter from the StA dated 25 April 2017, see Appendix F 6).
c. Censoring of publication of the full-text version of the final judgement of the Cologne Higher Regional Court on 12.4.2018 (15 U 85/17) on “collusion between Grünenthal and the Contergan Foundation” together with a press review of this judgement in the “Contergan-Historie” (History of Contergan) section of the Contergan Foundation’s website (Info-Portal) by the Chairman of the Council of the Contergan Foundation, Christoph Linzbach (BMFSFJ), and the other ministerial representatives on the Council of the Foundation (BMF, BMAS)
At the 108th meeting of the Council on 5.12.2018, I requested publication of the full-text version of the final judgement of the Cologne Higher Regional Court on 12.4.2018 (15 U 85/17) on “collusion between Grünenthal and the Contergan Foundation” together with a press review of this judgement in the “Contergan-Historie” (History of Contergan) section of the Contergan Foundation’s website (Info-Portal).
Because of the historical significance of the judgement for the Contergan scandal and the Contergan Foundation, the judgement together with the press review should be positioned in the “Contergan-Historie” section in such a way that it cannot be overlooked.
It should be possible for every visitor to the website to download the full-text version.
The judgement of the Cologne Higher Regional Court on 12.4.2018 determines, in a way that is historically significant for the story of the Contergan scandal, that there was collusion between the Grünenthal company and the Contergan Foundation.
Only on the surface does it relate to a dispute between two private individuals.
Because both of the parties involved in the dispute were office-holders in the Contergan Foundation at the time when the facts of the case occurred.
I myself as plaintiff was an ordinary member of the Council of the Foundation of the Contergan Foundation and, on 1.2.2013, was also invited as an expert to a public hearing of the Committee for Family Affairs, Senior Citizens, Women and Youth (Federal Family Affairs Committee) of the 17th German Federal Parliament on the results of a long-term study on the living situation of Contergan victims in my function as a member of the Council of the Foundation and as Chairman of the Bund der Contergangeschädigten und Grünenthalopfer e.V. (BCG).
The defendant, Attorney Karl Schucht, was Chairman of the Medical Commission of the Contergan Foundation from 1.1.2004 until the end of 2009, and in addition, from the end of 2009 until 2014, he was a member of the Board of the Foundation.
Attorney Schucht succeeded Attorney Wartensleben as Chairman of the Medical Commission of the Contergan Foundation on 1.1.2004.
It is important to emphasise that the judgement of the Cologne Higher Regional Court on 12.4.2018 confirmed and juristically evaluated a key finding of the final report by GSK Stockmann on 6.12.2017, which had been commissioned by the Contergan Foundation itself.
Here are the facts:
At the public hearing of the Family Affairs Committee, I expressed myself as follows (the section of my statement that is relevant to the judgement is cited as below on page 3-4 of the judgement):
“Today in Australia, millions are paid to the victims because they are able to sue the firms that were responsible. In Germany this is no longer possible. But what is possible is the following:
For 30 years, Grünenthal was represented in the Contergan Foundation by a lawyer;
For 30 years, Grünenthal looked into our medical files in the Contergan Foundation;
For 30 years, Grünenthal paid the experts of the Medical Commission.
And even today Mrs. Blumenthal, the Chairwoman of the Management Board of the Contergan Foundation, who is present here, advocates a contract with the Grünenthal company to pay the costs of the Medical Commission.
Payment of the costs of the Medical Commission by Grünenthal is only of benefit to the Federal Government.
Because otherwise the Federal Government would have to pay the costs of the Medical Commission.”
My statement at that time can be read in its original here:
Following the meeting of the committee, on 22.2.2013, the defendant, Attorney Karl Schucht, who had not been heard as an expert by the committee, drafted a letter to all members of the Committee for Family Affairs, Senior Citizens, Women and Youth, using the letterhead of the Management Board of the Contergan Foundation, in which he wrote among other things:
“Mr Meyer has alleged that for 30 years Grünenthal has also been looking into the medical files of the affected persons at the Contergan Foundation.
This allegation is untrue.
At no time has Grünenthal had access to the medical files of the Contergan Foundation.
The medical files were and are always kept in the office of the Contergan Foundation.
Mr Meyer has alleged that Grünenthal has been paying for the experts of the Medical Commission of the Contergan Foundation for 30 years.
This allegation is untrue.
The experts of the Medical Commission have always been paid out of the funds of the Contergan Foundation.”
The letter from Attorney Karl Schucht on 22.2.2003 led to a Minor Interpellation by the Parliamentary Group Die Linke on 4.4.2013.
Of particular significance for the above-mentioned proceedings are Question No.1 and Questions Nos. 3 and 4.
Question No. 1 on 4.4.2013 asked:
“How far does the letter from Mr. Schucht dated 22.02.2013 only represent the opinion of the Foundation’s Management Board or also that of the supervising Federal Ministry?”
In its reply to Question No. 1 on 22.4.2013, the BMFSFJ announced:
“Insofar as the Federal Ministry of Family Affairs, Senior Citizens, Women and Youth (BMFSFJ) has knowledge of the facts on which the letter is based, the contents of the letter largely correspond to the opinion of the Federal Government.”
Question No. 3 on 4.4.2013 asked:
“Can the Federal Government confirm the claim of the Management Board of the Contergan Foundation:
‘Grünenthal has at no time had access to the medical files of the Contergan Foundation’ (see letter from Karl Schucht dated 22 February 2013)?”
Question No. 4 on 4.4.2013 asked:
“If no, which employees of Grünenthal GmbH have or have had, to the knowledge of the Federal Government access to the medical files of the Contergan victims?”
The BMFSFJ answered Questions Nos. 3 and 4 on 22.4.2013 as follows:
“Questions 3 and 4 are answered together in view of their contextual connection.
To the knowledge of the Federal Government, the company Grünenthal GmbH had or has no access to the medical files of the Foundation.”
In the judgement of the Cologne Higher Regional Court on 12.4.2018, which now has the force of law, the defendant Attorney Karl Schucht was forbidden to assert (page 2 of the PDF file of the judgement):
“a. Mr Meyer has alleged that for 30 years Grünenthal has also been looking into the medical files of the affected persons at the Contergan Foundation. This allegation is untrue. At no time has Grünenthal had access to the medical files of the Contergan Foundation. The medical files were and are always kept in the office of the Contergan Foundation.
b. Mr Meyer has alleged that Grünenthal has been paying for the experts of the Medical Commission of the Contergan Foundation for 30 years. This allegation is untrue. The experts of the Medical Commission have always been paid out of the funds of the Contergan Foundation.”
Should Attorney Schucht repeat these assertions, he must reckon with a fine of up to 250,000 € with the alternative of detention for up to 6 months.
However, the further claims established by Meyer for rectification towards the then members of the parliamentary committee were dismissed because a legitimate interest could not be seen to exist any more.
The then members of the committee no longer had any involvement in the consideration of legislation.
A further appeal was not permitted by the Cologne Higher Regional Court, because it concerned a decision in an individual case without fundamental significance.
In the grounds for its judgement, the Cologne Higher Regional Court determined among other things on pages 13 and 14 (of the German text):
The Regional Court correctly recognised that, independently of whatever may have been the contents of the “reference files” that were ultimately transferred to the Grünenthal company’s archives, Attorney Wartensleben had received the medical files (…), so that these were accessible to employees of this company. Mr Wartensleben received them in his capacity as a member of the Medical Commission of the Contergan Foundation, but at the same time he was employed in the initial period as this company’s corporate lawyer, and later, after leaving the company, he represented it as an attorney.
The same applies, for the whole of Mr Wartensleben’s period of activity, to his assistant and employee R, who was an employee of Grünenthal.
It may be that one can speak of a “dual role” of Attorney Wartensleben and the other employee R. It may also be that one can assume the imposition of “confidentiality” by statute or in law, or at least organised in the form of a so-called “Chinese wall”.
However there was always an identity of the persons involved, which on this account alone could justify the possibility for “Grünenthal” to become aware of the contents.
It is also not in dispute that the financing of the work of the Medical Commission was at least partly secured by a lump-sum payment which the Grünenthal company transferred to the Contergan Foundation.
This practice had existed since 1973 and was placed on a contractual basis in 2005, under which the Grünenthal company agreed to make an annual payment of 24,000.00 EUR to the Contergan Foundation to serve as coverage of expenses by the Medical Commission.
The question which remains in dispute between the parties, of whether payments to the experts were made directly by the Contergan Foundation, which the Regional Court took as the sole basis for its judgement, is not decisive here.
The cease-and-desist claim is thus founded on the fact that untrue assertions were made by the Defendant which were in danger of repetition.” (abbreviations and deletions by the undersigned.)
The fundamental significance of this judgement lies not only in the fact that it focuses on the dual role of the protagonist Herbert Wartensleben as legal representative of the Grünenthal company on the one hand and as Chairman of the Medical Commission of the Contergan Foundation on the other hand, and thus confirms the final report on the background to the files scandal (“discovery of files”) by GSK Stockmann which had been commissioned by the Contergan Foundation itself.
The judgement also sketches, in the person of Attorney Karl Schucht, the unholy actions of a member of the Management Board of the Contergan Foundation, whose problematic relationship to the truth led him – as a lawyer – to lie to Parliament, (presumably) in the service of Grünenthal.
And almost incidentally, it opens up a Pandora’s Box for democracy, because the Federal Ministry for Family Affairs, which supervises the Contergan Foundation, in its reply to a Minor Interpellation by the Parliamentary Group Die Linke, appears to be inclined to develop a similar relationship to the truth as Mr Schucht when it comes to silencing unwelcome opponents of Grünenthal.
At least equally serious is the fact that, at the 108th meeting of the Council on 5.12.2018, the Chairman of the Council of the Foundation, Christoph Linzbach (BMFSFJ), against his better knowledge, arbitrarily ignored the fact that the judgement dealt with facts that document the collusion of the Contergan Foundation with the Grünenthal company over 30 years.
But readers can judge this for themselves.
They can read the judgement for themselves, as well as the Minor Interpellation by the Parliamentary Group Die Linke together with the reply from the Federal Ministry for Family Affairs.
They can decide for themselves whether the judgement of the Higher Regional Court is of fundamental significance for the Contergan Foundation or not.
In the minutes of the 108th meeting of the Council on 5.12.2018, on agenda item 13, “publication of the judgement of the Cologne Higher Regional Court on 15.2.2018 (the date is an error on my part that crept in when transcribing the draft motion; the correct date is 12.4.2018) together with a press review on this judgement in the Info-Portal”, the following is recorded on page 28:
“The Chairman of the Council of the Foundation introduced the motion submitted by Mr Meyer.
He pointed out that the Foundation was not involved in the proceedings referred to.
Since the judgement was also not of fundamental significance, it also did not fall within the sphere of responsibility of the Council of the Foundation.
Moreover, since in principle individual cases were not published, he could not approve the motion.
Mr Meyer contradicted this opinion.
The Council of the Foundation was affected in that he (Mr Meyer), as victims’ representative on the Council of the Foundation, was involved in these proceedings.
In addition, the proceedings concerned the affairs of the Foundation from the previous decades.
He said that the judgement was of fundamental significance because the subject of the dispute had also played a great role in the Federal Parliament.
The Chairman of the Council of the Foundation pointed out that he had presented his position, and asked the remaining Members of the Council if they wished to comment.
This was not the case.
The motion was rejected with 2 votes in favour and 3 votes against.”
Are you right, Mr Linzbach?
C. The pending court cases at the Cologne Administrative Court or elsewhere do not affect the continuation of the Vascular Study
Regardless of the outcome of these court cases at the Cologne Administrative Court:
Whether the respective plaintiffs win or lose.
Or if a settlement is reached.
This cannot influence the question of whether another Contergan victim has relevant vascular deformities or not.
For these reasons, these proceedings can in no way make the Vascular Study superfluous!
The medical results determined in the court cases can, at the most, provide a slight prognosis or cautious indication.
on the Council of the
On 30.04.2019 at 15:36, Christoph.Linzbach@bmfsfj.bund.de wrote:
> Ladies and Gentlemen,
> In the last meeting of the Council on 5 December 2018, the Managing Board reported on the status of the Vascular Study. It stated that the costs of the study would be higher than the amount of 555,600 euros that had been initially expected and approved by the Council of the Foundation. Meanwhile the Managing Board has informed me that Prof. Lund now estimates the costs of the Vascular Study to amount to a total of 1,085,913.96 euros. Also, various court cases are pending before the Cologne Administrative Court, the judgements of which could have a possible impact on the Vascular Study.
> Since all Members of the Council have a great interest in an early start to the Vascular Study, a circulation procedure was agreed. Unfortunately this is no longer possible owing to the latest developments.
> The Council of the Foundation should discuss this matter and consider how to proceed. The Vascular Study will therefore be an item on the agenda of the forthcoming meeting of the Council on 5 June 2019.
> Yours sincerely
> Christoph Linzbach
> Assistant State Secretary
> Chairman of the Council of the Contergan Foundation
> Head of Project Group Trusts & Foundations
> Directorate-General 5 “Children and Youth”
> Federal Ministry for Family Affairs,
> Senior Citizens, Women and Youth
> Glinkastraße 24, 10117 Berlin
> Telephone: 030/18555-1905
> Fax: 030/18555-41905
> E-Mail: Christoph.Linzbach@bmfsfj.bund.de
Please refer our press release dated 5.9.2016 about the filing of the lawsuit.
Please refer our press release dated 13.2.2017 about the court proceedings.