Draft Resol Ext Audit Mandate
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Note: This English translation is unofficial. Only the original German text carries legal authority. ____________________________________________________________________________ Andreas Meyer 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: mailto:[email protected] To the Contergan Foundation for People with Disabilities - Office - Sybille-Hartmann-Str. 2-8 50969 Cologne To 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 Foundation 9.11.2018 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. Page 2 of 14 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 Page 3 of 14 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. Page 4 of 14 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. Page 5 of 14 Grounds 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.