The most recent “SWR Extra” TV report on February 1, 2021 on the German government’s vaccination summit discussed not only missing vaccine doses and problems with giving out vaccination appointments, but also the non-transparent contracts that the EU concluded with vaccine manufacturers. Dr. Ute Jasper, procurement law expert and Head of Heuking Kühn Lüer Wojtek’s Public Sector & Public Procurement Practice Group, reviewed the two contracts with Curevac and AstraZeneca for SWR and explained the legal situation in an interview.
What caught Ute Jasper’s attention is the fact that the contracts keep referring to “best efforts,” meaning that vaccine manufacturers must make efforts to meet all deadlines and delivery obligations as best as possible. They may, however, not be sanctioned with liquidated damages and sued for compensation of damages if they fail to meet deadlines and targets on grounds lying outside their sphere of influence. In any event, Ute Jasper does not consider the contract with AstraZeneca to be as “crystal clear” as it is described by the EU Commission.
When it comes to liability, the situation is similar. “Vaccine manufacturers regularly accept responsibility for ensuring that no harm occurs. This is different in those two contracts that stipulate that EU Member States will indemnify the vaccine manufacturers, thus assuming the compensation for damages and the manufacturer’s payment obligation,” said Ute Jasper. Given that European taxpayers’ money is at stake, it is certainly an unusual passage.
SWR Extra also finds fault with the fact that only two of the six contracts with the manufacturers have been published to date, and even those two are heavily redacted. “In Germany, such contracts would very likely be publicly accessible and actionable, because we have the Freedom of Information Act, which allows the public to inspect such contracts. Transparency in the EU turns out to be pretty limited,” Ute Jasper concluded.
The EU had taken months to negotiate these contracts with the vaccine manufacturers, while other countries had long since ordered millions of doses. This approach now leads to the lack of vaccine doses for the general population.
Find the complete interview in SWR's Mediathek media library.
Heuking Kühn Lüer Wojtek’s “Public Sector & Public Procurement” department has been one of the market leaders in public procurement law for years. Its lawyers hold top spots in German and international lawyer rankings. Since 1991, they have advised on awards, restructuring, large-scale projects, and cooperations in the public sector and have accompanied several hundred large-scale projects of federal, state, and local authorities and their subsidiaries with a total volume in excess of EUR 40 billion without any procedure having been successfully challenged to date.
Dr. Ute Jasper is one of the most renowned lawyers for procurement and infrastructure projects in the public sector. She advises federal and state ministries, municipalities, and businesses, particularly on innovative and complex projects. Ute Jasper is a Partner at the law firm of Heuking Kühn Lüer Wojtek where she heads the “Public Sector & Public Procurement” department. For years, she has been ranked number 1 in Public Procurement Law with her team in JUVE Handbook of Commercial Law Firms. According to “Law Firms in Germany,” she is the “premier contact on the market” for infrastructure. In October 2016, she received the JUVE Award for Regulated Industries with her team.