Court delivers a blow to the EU over failure to preserve messages between Von der Leyen and Pfizer

The General Court of the EU (CJEU) on Wednesday overturned the European Commission's decision to refuse disclosure of text messages exchanged between Ursula von der Leyen with Pfizer lab CEO Albert Bourla during the coronavirus pandemic.

The EU General Court (EGC) on Wednesday overturned the European Commission’s decision to deny access to text messages exchanged between Ursula von der Leyen and Pfizer CEO Albert Bourla during the COVID-19 pandemic.

The case had been uncovered by a New York Times journalist in Brussels, who asked the institution to publish these messages, exchanged between January 2021 and May 2022 between the two leaders, when the Commission negotiated the purchase of huge quantities of vaccines against COVID-19.

The amount of the contracts negotiated by the Commission on behalf of the 27 countries of the bloc amounted to billions of euros, so the award process causes enormous interest and suspicion to clarify whether there was any interest other than getting the best product at the best price to ensure the health of Europeans at a time of great fear and tension and millions of deaths as a result of the pandemic.

According to the Commission, the messages "did not contain important information"

However, the Commission argued that these messages could not be considered official documents, and therefore were not kept. A point that the TGUE does not consider valid, since the ruling considers that the Commission "did not provide a plausible explanation to justify that it was not in possession of the requested documents." Nor did it "plausibly explain why it considered that the text messages exchanged in the context of the purchase of covid vaccines did not contain important information."

According to the TGUE, the answers provided by the Commission in relation to the requested text messages "are based either on assumptions, or on shifting or inaccurate information. The Commission did not sufficiently clarify whether the requested text messages had been deleted and, if so, whether the deletion had been voluntary or automatic, or whether the Chairwoman's cell phone had been replaced in that time interval."

The Commission "must present credible explanations"

For the court, the Commission could not simply state that it does not have the requested documents in its possession. Instead, it added, "it must present credible explanations that enable the public and the General Court to understand why those documents cannot be found."

After learning of the ruling, the Commission issued a statement assuring that it "takes note" of the decision of the GCGEU and will proceed to study it "closely" to define "the next steps."

Shadows loom over billion-dollar vaccine purchase from Pfizer

During the pandemic, the EU bought or reserved most vaccine doses from the U.S.-German duo Pfizer/BioNTech, even though five other manufacturers had their vaccines approved by the European regulator.

For his refusal to disclose the messages, Von der Leyen became the subject of several complaints, including one in Belgium for "destruction of public documents" and "corruption," which was later ruled inadmissible by the Liège Court of Appeal.

The case broke out in April 2021, when journalist Matina Stevis revealed the existence of the messages in the The New York Times, and subsequently formally requested access to the content of the messages, supported by a 2001 European regulation.

The Commission, however, refused to disclose the content of the exchanges, and argued that the text messages could not be considered public documents, about which there are rules on protection. As a result, the journalist and the U.S. newspaper decided in 2023 to appeal to the European courts.

The European Ombudsman also requested the publication of the messages

The case generated a controversy in which even the then European Ombudsman, Emily O'Reilly, a native of Ireland, publicly asked the Commission in January 2022 to make efforts to retrieve the messages.

For O'Reilly, the messages "fall within the framework of European legislation on public access to documents" and "the public can have access to them if they concern the work of the institution," she said at the time, adding that it was a "problematic" case.

In its view, this amounted to “maladministration,” arguing that the messages should have been subject to the EU’s public transparency rules for official documents.

The TGUE's rulings can be appealed to Europe's highest court, the Court of Justice of the EU (CJEU), within two months and 10 days.