On October 3, 2018, a very unusual meeting took place at the airport Berlin-Tegel. Federal Transport Minister Andreas Scheuer (CSU) met with Georg Kapsch, head of the Austrian concern Kapsch TrafficCom. In addition, then the then State Secretary Gerhard Schulz and another manager of Kapsch were present.
Even the place and the date make you startled. What had the minister and the managers on the day of German unification, a holiday, to discuss in a conference room at the airport, which had been organized by Kapsch?
Scheuer initially kept the meeting secret
Legally, the discreet meeting was tricky. Kapsch applied at that time together with the German company Eventim for the contract to collect the car toll in Germany. The process was not completed at this time. More than a week later, the deadline for submitting a final offer ended. So other companies could still offer.
Nevertheless, Scheuer met with the managers for 45 minutes, as confirmed by the Ministry at the request of SPIEGEL. The Minister continues to be under pressure. Scheuer had initially concealed the meeting from the Bundestag.
When his toll plans were stopped in June 2019 by the European Court of Justice (ECJ), Scheuer met the opposition criticism with an alleged transparency offensive. He provided the parliament with well over 50 folders with documents. But the documents found nothing to the secret meeting at Tegel airport.
In recent weeks, the SPIEGEL had first reported two secret meetings with the toll operators in November 2018 and June 2019. Insiders had stated that the Eventim boss Klaus-Peter Schulenberg had submitted to the minister at the appointment in November 2018 the offer to sign the billion-dollar contract only after the all-decisive ECJ ruling.
But Scheuer should have rejected this, among other things for reasons of election tactics. Several sources have confirmed to SPIEGEL that Scheuer wanted to avoid that the introduction of the toll in the election campaign in 2021 falls and spoils the election campaign in case of any problems. Scheuer denied this. The opposition wants to use a committee of inquiry to clarify the allegations.
"General Exchange", "Introductory Date"
This week, Scheuer had to announce further confidential meetings with the tops of the operating companies at the request of the Green Group in the Bundestag. The meeting, which was first reported by the Süddeutsche Zeitung, also includes the meeting on 3 October 2018.
It would have been a "general exchange", said Parliamentary State Secretary Steffen Bilger. Also for this discussion there were "neither preparatory nor follow-up notes".
At the request of SPIEGEL, the ministry announced further details on Friday. The meeting had been a "get-to-know" event, it had served the "exchange of ideas, in particular on the technology in the control as well as the collection of the infrastructure charge".
The reasoning is puzzling. Because in the months before there had been official rounds of negotiations with the bidder companies that were logged. Corresponding documents and summary notes were available to the Minister. The companies Kapsch and Eventim were well known in the ministry.
Breach of the principle of equal treatment?
The procurement lawyer Norbert Dippel, who has worked for a long time at a federal company, sees in the discrete meeting a possible violation of public procurement law.
"Basically, communication between the contracting authority of the Ministry and the bidder companies takes place in an ongoing procurement process, and such parallel discussions always involve the risk of exchanging supply-relevant information outside the procurement process," says Dippel.
"From the client's point of view, this would be a breach of the principle of equal treatment and, from the company's point of view, this could be considered an unlawful attempt to obtain confidential information," continues Dippel.
Kapsch did not want to comment on the appointment. The Ministry denies the allegation of violation of public procurement law: "The discussion on 3 October does not constitute administrative action within the meaning of the Federal Administrative Procedure Act, but is political action of leadership and leadership without legal effect," it says. "Therefore, there is no file relevance."
Scheuer found himself in a difficult situation in 2018
Confidential documents from the Ministry of Transport indicate that Scheuer was in a difficult situation in October 2018. Shortly before, several bidders had jumped for the collection of the car toll. Other consortiums split up and decided to keep going on their own.
"Against the background of the already very limited bidder competition", the deadlines for the bidders should be extended, wrote Scheuer officials on 4 September 2018 in a note to the management.
In the worst case, as Scheuer must have realized then, no consortium would make an offer. A few days before the Bavarian state elections on 14 October 2018, the CSU prestige project would come to a standstill.
Kapsch and Eventim made a final offer on 17 October. On November 26th, 27th, 29th, and 7th, further secret meetings took place between ministry leaders and operators that were not logged.
On December 30, 2018, a Sunday, the operator contract was finally signed, which provided very lucrative conditions for the operators, if the toll project is stopped by the ECJ.
In the coming months, testimony in the investigative committee must now clarify whether the secret meeting between Scheuer and the operating companies also talked about concrete contract content.