DRAFT RESOLUTION TO EXTEND THE AUDIT MANDATE OF THE LAW FIRM GSK STOCKMANN & KOLLEGEN
Ordinary Member of the Council
of the Contergan Foundation for People with Disabilities
Dohmengasse 7, 50829 Cologne
Telephone: 0221 / 9505101,Telefax: 0221 / 9505102
E-Mail: firstname.lastname@example.orgTo the
for People with Disabilities
– Office –
50969 CologneTo be forwarded to:the Chairman of the Council of the Contergan Foundation, Christoph Linzbach
the Members of the Council and their deputies
the Management Board of the Contergan Foundation9.11.2018
Subject: Draft resolution to extend the audit mandate of the law firm GSK Stockmann & Kollegen.
Dear Mr Linzbach, Ladies and Gentlemen,
Thank you very much for your e-mail letters dated 14.6.2018 and 31.10.2018.
Firstly I wish to apologise for the fact that I am only now reverting to you with my above-mentioned concern.
As you certainly know, many things have happened this year in the Contergan affair. Also from our side, we are not entirely free from the effects of age, so that we have sometimes needed to enjoy longer periods of recuperation in order to recoup our strength for the cause of Contergan.
However, I now wish to revert to you in good time with my above-mentioned concern and present you with a concrete description of my ideas about the subject of the investigation and its necessity.
I gladly attempt to present this in the form of a draft resolution.
The Management Board of the Contergan Foundation is requested to extend the audit mandate of the law firm GSK Stockmann & Kollegen to clarify the background of the so-called “discovery of files” at the Grünenthal company as follows.
The extension of the audit mandate must necessarily be expanded to cover all persons who are subsumed under the following areas of concretisation:
I. It is to be clarified why Käte Strobel (SPD), the Federal Minister of Youth, Family Affairs and Health who was in office in 1972, as the Minister in charge of the Ministry responsible for supervision of the Contergan Foundation, made it possible for Attorney Herbert Wartensleben to assume the position of Chairman of the Medical Commission of the Contergan Foundation, although it was known at that time (two years after the closure of the Contergan trial) that Wartensleben (during and after the trial) was head of the Legal Department of the Grünenthal company.
II. It is further to be clarified why, in spite of the statutory obligation on the Federal Ministry of Family Affairs to supervise the Contergan Foundation, the successive Federal Ministers of Family Affairs, etc.(Käte Strobel SPD, Katharina Focke SPD, Antje Huber SPD, Anke Fuchs SPD, Heiner Geißler CDU, Rita Süssmuth CDU, Ursula Lehr CDU, Hannelore Rönsch CDU, Angela Merkel CDU, Claudia Nolte CDU, Christine Bergmann SPD, Renate Schmidt SPD) as well as their ministerial officials allowed Mr Wartensleben to remain in his post as Chairman of the Medical Commission for over 30 years.
III. It is also to be clarified why the Chairpersons of the Council of the Contergan Foundation, who from 1972 until today have been regularly appointed by the ministerial officials of the Federal Ministry of Family Affairs, accepted and tolerated without complaint the generally standard practice in the Contergan Foundation that the staff in the Foundation’s office and the members of the Medical Commission send the respective medical files of affected persons to the address of the Grünenthal company for processing by Attorney Wartensleben, although there would have been sufficient space at the Lastenausgleichsbank (today the KfW-Bank) for Wartensleben to have been able to process the files there.
IV. It is also to be investigated whether, after the cessation of Mr Wartensleben’s employment as corporate attorney of Grünenthal in the year 1983, the staff in the Foundation’s office and the members of the Medical Commission continued to send the files of persons eligible for benefits to the Grünenthal company for processing by Mr Wartensleben until Mr Wartensleben’s departure from the post of Chairman of the Medical Commission in the year 2003.
V. Insofar as this assumption is confirmed, as a precaution it is also to be investigated whether, up to the present time, files or documents of persons eligible for benefits are being or have been sent by the staff in the Foundation’s office and the members of the Medical Commission to the Grünenthal company or to Mr Wartensleben.
VI. Against the background of the findings of the final report by GSK Stockmann & Kollegen of 6.12.2017 as well as the facts determined in the legal judgement of the Cologne Higher Regional Court on 15.2.2018 in the law suit about so-called “collusion between Grünenthal and the Contergan Foundation” and the facts presented in Points I to V, it is to be clarified why the Federal Ministry of Family Affairs, both in a reply to a Minor Interpellation by the Parliamentary Group Die Linke (Left Party) in 2013 and also to similar enquiries from extra-parliamentary sources until the present time, answered that to the knowledge of the Federal Government in the year 2013 the Grünenthal company GmbH had had no access to the files of the Foundation.
VII. It is to be investigated whether, in the years 1973 to 1979, detailed exchanges of information, strategic discussions and joint agreements were held on a regular basis between Attorney Wartensleben and officials of the Foundation as well as of the Federal Ministry of Family Affairs at Board meetings or Council meetings of the Contergan Foundation during the legal disputes between the Grünenthal company, the parents’ trustee Attorney Dr. Dr. Rupert Schreiber and the plaintiff A.K., a Contergan victim (name anonymised, but will gladly be disclosed to the Chainman of the Council and GSK Stockmann & Kollegen) with the objective of achieving a positive outcome of the case for the Grünenthal company.
VIII. In this connection it is also to be investigated, in how many cases from 1972 until today the Contergan Foundation has been (partly or wholly) represented by attorneys of the Grünenthal company, or by attorneys who were proposed by the Grünenthal company or who are close to the Grünenthal company, against affected persons seeking to establish their right to benefits from the Contergan Foundation by legal means.
IX. It is also to be clarified why Attorney Wartensleben as legal representative of the Grünenthal company was permitted to be joint author of the damage points table, and what impact this has had on the recognition of Contergan-related damage patterns and their inclusion in the points table.
X. It is further to be examined whether applicants for benefits from the Contergan Foundation and persons eligible for benefits have been disadvantaged through the regular exercise of his duties by Mr Wartensleben as Chairman of the Medical Commission.
XI. It is further to be examined whether the facts outlined above and the findings on Points I to XIII that will be produced in the framework of the audit mandate can be presented or evaluated according to the then and current legal understanding as a conflict of interests and/or a breach of the supervisory duty of the Ministry or a violation of any rights of Contergan-damaged persons eligible for benefits by the Federal Ministry of Family Affairs, its ministerial officials, its staff responsible for the Contergan Foundation and its respective Ministers.
XII. It is to be investigated how the supervision of the Contergan Foundation can be withdrawn from the Federal Ministry of Family Affairs and transferred to another Federal Ministry. In so doing, it is to be ensured that no ministerial officials or staff of the Federal Ministry of Family Affairs who were responsible for the Contergan Foundation shall remain responsible for the Contergan Foundation in the new Ministry. Further, the newly-responsible officials for the Foundation should have no connections to the Grünenthal company, its sister companies, the owner family Wirtz or known accomplices and sympathisers of the Grünenthal company. GSK Stockmann & Kollegen are also instructed to draft an appropriate amendment to the Contergan Foundation Act.
XIII. In the implementation of the extended audit mandate, it is to be ensured that neither ministerial officials, staff or secretaries of state of the Federal Ministry of Family Affairs, nor the Federal Minister in office, nor the members of the organs of the Contergan Foundation, its office staff and the Medical Commission, shall be able to exercise influence on the results of the extended audit mandate. The acceptance of the final report of the extended audit mandate may only take place through the Council of the Contergan Foundation.
The results of the extended audit mandate shall be published on the information portal of the Contergan Foundation in all languages of persons eligible for benefits and without barriers.
The same applies without delay to this draft resolution.
The rejection of one of the Points I to X listed here shall not prevent a positive resolution on the remaining points.
In 2014, the Contergan Foundation commissioned the law firm GSK Stockmann & Kollegen to clarify the background to the alleged “discovery of files” at the company Grünenthal GmbH, to evaluate the matter with regard to data protection law, to identify the necessary consequences, and to advise and represent the Contergan Foundation on the implementation of measures.
1. The alleged “discovery of files”
The occasion was an enquiry by the Land Commissioner for Data Protection and Freedom of Information in North Rhine-Westphalia (LDI NRW) to Attorney Wartensleben on 22. July 2013 as to whether he was still in possession of files of the Contergan Foundation from the time of his activities as Chairman of one of the two Medical Commissions of the Contergan Foundation. Attorney Wartensleben answered in the negative, saying that he was not in possession of any “Foundation files”.
The gratifyingly meticulous summary of the results of the detailed and intensive investigations contained in the final report dated 6.12.2017 raised questions about the responsibility of the Federal Ministry of Family Affairs, as the supervisory body for the Contergan Foundation, for the situation that was uncovered.
In the view of the undersigned it is especially noteworthy that, since the entry into force of the Contergan Foundation Act in 1972, for over 30 years and without any objections from the supervising Federal Ministry, in the Contergan Foundation which was set up by the Federal Government, the corporate attorney and legal representative of the Grünenthal company which caused the damage, Herbert Wartensleben, as Chairman of the Medical Commission at least had insight into the files of persons eligible for benefits, and in consequence, at least through his person, the Grünenthal company also had insight into the files.
At this point, the positive fact should not go unmentioned that the investigation by GSK Stockmann & Kollegen summarised in the final report on 6.12.2017 was also supported or initiated by the Federal Ministry of Family Affairs.
However, this positive view of the Ministry is immediately clouded again, when following the rather sudden “discovery of files” it becomes clear, on viewing the files returned to each affected person after the “discovery”, that in the past – under the eyes of the supervising Federal Ministry of Family Affairs and the ministerial officials responsible for the Foundation whom it regularly appointed, in particular the Chairman of the Council of the Foundation – at least from 1972 until 1983 it was evidently customary and routine for the Contergan Foundation itself through the members of the Medical Commission, and also through its office staff, to send the files of persons eligible for benefits to the address of the Grünenthal company so that Mr Wartensleben could perform his job as Chairman of the Medical Commission in the business offices of the Grünenthal company.
Minutes of the 104th Meeting of the Council of the Contergan Foundation on 18.5.2017, page 13, dialogue between the victims’ representative Andreas Meyer and Attorney Dr. Jan Hennig of GSK Stockmann & Kollegen:
“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, it was proposed 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.”
The question quickly arises of why representatives of the Federal Ministry of Family Affairs speak of a “discovery” when the administrative bodies of the Contergan Foundation – over which they had supervisory responsibility – themselves routinely passed these files to Grünenthal.
Only the persons eligible for benefits and their representatives were not aware of this. Because until this “discovery of files” they had believed that Attorney Herbert Wartensleben, the Grünenthal company’s strong-arm man, dutifully carried out his tasks in the framework of his position as Chairman of the Medical Commission in the Contergan Foundation’s premises in Bonn, at that time located at the former Lastenausgleichsbank (now KfW-Bank).
And the distance from Stolberg to Bonn is manageable (c. 84 km). And the Lastenausgleichsbank possessed sufficient space. And, if in Mr Wartensleben’s opinion the journey from Stolberg to Bonn was too long, he could have simply resigned from his post.
In view of this, the supposed “discovery of files” rather gives the impression of an invented construct designed to distract from the fact that the files discovered at Grünenthal had long been available to Grünenthal due to the earlier routinely and dutifully conducted working procedures of the Contergan Foundation’s administrative bodies.
And there is also a simple explanation for the practically unanswerable question of what was done after the cessation of Wartensleben’s work as corporate attorney at Grünenthal in 1983:
What had always been routine and custom was simply continued!
The fetish for bureaucratic types is the stereotypical continuation of customary practices.
Presumably the files continued to be sent to Grünenthal, and from 1983 Wartensleben had them processed at Grünenthal by the Grünenthal employee R., or he had them brought to him by R. in his law office and, when finished with, the files were then archived at Grünenthal. Another possibility is that he drove from his law office to the administrative buildings of the Grünenthal company to process the files. It was really only a stone’s throw, because the two offices are close together.
The interesting question only remains of how long this stereotype was maintained.
It is my personal estimation that the enquiry by the Land Commissioner for Data Protection and Freedom of Information in North Rhine-Westphalia (LDI NRW) on 22. July 2013 caused disquiet both on the Grünenthal/Wartensleben side and on the side of the Federal Ministry of Family Affairs and the Contergan Foundation, so that it was considered necessary to invent the construct of the supposed “discovery of files” in order to hide the fact that it had been normal practice for the files and documents of persons eligible for benefits to be sent regularly to Grünenthal’s address by the staff in the Foundation’s office and the members of the Medical Commission.
Because this assumption is also underpinned by a further chain of events partly created by the Federal Ministry of Family Affairs:
2. The collusion judgement of the Cologne Higher Regional Court on 15.2.2018
a. The statement
As background to this chain of events it should firstly be mentioned that, at a public hearing of the Family Affairs Committee of the German Federal Parliament on 1.2.2013, the signatory of this text, Andreas Meyer, made a statement in his capacity as member of the Council of the Contergan Foundation and as Chairman of the BCG. In this, Andreas Meyer made reference to the fact that since 1973 the Grünenthal company had paid the costs of the medical experts of the Contergan Foundation (Medical Commission) and these payments were recorded in the budget plans of the Contergan Foundation as items in transit.
Among other things he also said that for over 30 years the Contergan and Thalidomide manufacturer Grünenthal GmbH had been looking into the medical files of Contergan victims at the Contergan Foundation.
Here he made reference to the fact that from 1972 until the end of 2003 the former head of the Legal Department of the Grünenthal company in the Contergan trial, Attorney Herbert Wartensleben, was at the same time Chairman of one of the two Medical Commissions of the Contergan Foundation.
He said further that Grünenthal had been paying for the experts of the Medical Commissions of the Contergan Foundation.
Here, he made reference to the fact that since 1973 the Grünenthal company had paid the costs of the medical experts of the Contergan Foundation (Medical Commission) and these payments were recorded in the budget plans of the Contergan Foundation as items in transit.
The statement can be seen here:
b. The letter
In response to the statement by Andreas Meyer, Attorney Karl Schucht, a member of the Management Board of the Contergan Foundation for the 11th period of office, sent a letter dated 22.2.2013 to all members of the Family Affairs Committee of the 17th German Federal Parliament asserting that Andreas Meyer had made untrue allegations in his statement.
In his letter, Attorney Schucht asserted further that Grünenthal had never had access to the medical files of the Contergan Foundation. The medical files were always kept in the office of the Contergan Foundation. Furthermore, the experts of the Medical Commission had always been paid out of the funds of the Contergan Foundation.
You can read the letter from Attorney Karl Schucht dated 22.2.2013 here:
c. The Minor Interpellation and the replies of the Federal Government
Meyer’s above-mentioned statement on 1.2.2013 and the letter from Attorney Karl Schucht dated 22.2.2013 to the members of the Family Affairs Committee were the subject of a Minor Interpellation by the Parliamentary Group Die Linke (Left Party) in the German Federal Parliament on 4.4.2013.
Relevant to the further presentation of the events are just two questions and the replies to them by the Federal Government on 20.4.2013:
Here for example is the text of Question 1 of the Minor Interpellation by the Parliamentary Group Die Linke on 4.4.2013:
“Question No. 1:
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?”
The then Federal Government answered this question in its reply on 22.4.2013 as follows:
“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.”
Here for example is the text of Question 3 of the Minor Interpellation by the Parliamentary Group Die Linke on 4.4.2013:
“Question No. 3:
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)?”
The then Federal Government answered this question in its reply on 22.4.2013 as follows:
“To the knowledge of the Federal Government, the company Grünenthal GmbH had or has no access to the medical files of the Foundation.”
The Minor Interpellations by the Parliamentary Group Die Linke on 4.4.2013 and the replies of the Federal Government on 22.4.2013 can be found at the following link:
d. Law suit and legal judgement at the Cologne Higher Regional Court
Then, on 7.6.2016, Meyer lodged a cease-and-desist suit against Attorney Schucht on account of the assertions in his letter of 22.2.2013.
Meyer’s suit against Attorney Schucht at the Cologne Higher Regional Court on 15.2.2018 was successful.
Through the judgement of the Cologne Higher Regional Court of 12.4.2018 (Akz. 15 U 85/17) on the collusion scandal between Grünenthal and Contergan Foundation, which has now entered into force, Attorney Karl Schucht (the defendant) was forbidden to assert:
“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, since the then members of the committee no longer have 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.)
It must be emphasised that the events at the public hearing of the Family Affairs Committee on 1.2.2013 with the statement by Andreas Meyer, the letter from Attorney Karl Schucht that followed from it on 22.2.2013, the Minor Interpellation by the Parliamentary Group Die Linke on 4.4.2013 and the Federal Government’s replies to it on 20.4.2013 had all taken place before the enquiry by the Land Commissioner for Data Protection and Freedom of Information in North Rhine-Westphalia (LDI NRW) on 22. July 2013.
And through each of these events prior to the enquiry of the LDI NRW on 22.6.2013, the protagonists had nailed their colours to the mast, because all of their actions had a public character.
When the enquiry of the LDI NRW on 22.6.2013 sought to determine whether Attorney Wartensleben was still in possession of files from the Contergan Foundation, it was obvious that Grünenthal must soon also be faced with the same question.
As a result of the enquiry of the LDI NRW on 22.6.2013, both the Grünenthal/Wartensleben faction and the Federal Ministry of Family Affairs/Contergan Foundation faction were in a dilemma:
The files which were actually at Grünenthal needed to be quickly taken out of the firing line of the LDI NRW investigators who were looking in the direction of Grünenthal/Wartensleben.
And what was the best “hiding place”?
When the files were “voluntarily” brought back again into the care of their real owner (the Contergan Foundation).
Only then would all those involved be “clean” and no more questions would be asked.
In order to make this cleansing incontrovertibly credible to both the Contergan victims and the public at large, the Contergan victims’ familiar enemy, Grünenthal/Wartensleben, just needed to make a sacrifice.
And this sacrifice was the sudden “discovery” of the files of the Contergan victims at the Grünenthal company.
It had to be made immediately credible to the critical Contergan victims that Wartensleben, their perceived Mr Bad Guy, had stolen the files from the Contergan Foundation, because they had all assumed that Wartensleben had carried out his job as Chairman of the Medical Commission in Bonn at the Lastenausgleichsbank (now KfW-Bank).
But that for years, through its staff and the members of the Medical Commission, the Contergan Foundation itself had been so brazen as to send the files of the Contergan victims under its power to the business address of the Grünenthal company – the multiple originator of the most severe damage to the victims’ health – not even the most critical within our ranks could have imagined.
And above all there was the Federal Ministry of Family Affairs, which should have been supervising the Foundation for the protection of the victims.
For years it tolerated and hushed up a normal everyday practice in the work of the Foundation:
The regular sending of the files of the victims to their tormentor, the Grünenthal company.
And this unholy practice could only be brought to light because, in 2009, democratic forces in the Federal Parliament ensured that the Contergan victims themselves were able to elect their representative to the Council of the Contergan Foundation.
And therefore this Ministry struggles with all its might to ensure that the rights of participation of the victims’ representative are diminished – no, eliminated.
Because it does not fight for the Contergan victims!
The Federal Ministry of Family Affairs fights for the interests of the Grünenthal company!
And thus the events turn full circle:
The Ministry needs accomplices who will help it to cover up in whose service it stands.
In Karl Schucht, the Ministry found a willing accomplice who was prepared to lie for the Grünenthal company and defame a victims’ representative.
And only thus is it possible to explain why the Federal Ministry of Family Affairs was prepared to lie to Parliament in its reply to the Minor Interpellation.
It is not only prepared to defame Contergan victims on behalf of Grünenthal.
It is also prepared to trample democracy underfoot for Grünenthal by lying to Parliament on behalf of Grünenthal.
Such a Ministry is corrupt!
Such a Ministry is criminal!
This Federal Ministry of Family Affairs is a Grünenthal Ministry!
I call on all affected persons to come to Berlin for the next meeting of the Council of the Contergan Foundation on 5.12.2018.
Let us see whether this Ministry, and with it the other Ministries, have the strength to find their way back to the path of democracy.
Let us see whether or not the audit mandate of the law firm GSK Stockmann & Kollegen will be extended along the above lines.
Depending on how the decision goes, we will know where we stand.
The above conclusion only consists of assumptions.
I hope they are really just assumptions.
With a warm heartbeat of solidarity.
Recommendation for the resolution:
The Council of the Contergan Foundation accepts the resolution.
Acceptance of the resolution does not mean the same as a partial or total acceptance of the grounds put forward for the resolution
Ordinary Member of the Council
of the Contergan Foundation