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Civil society yesterday won the first battle in the Pfizergate scandal, the case concerning the online negotiation on WhatsApp by Ursula von der Leyen - President of the European Commission - and Albert Bourla - CEO of Pfizer, of the contract for the purchase of Covid-19 vaccines. The General Court of the European Union annulled yesterday the European Commission's decision to refuse access to text messages between Ursula von der Leyen, President of the Commission, and Albert Bourla, Chairman and CEO of Pfizer. The decision follows a request by journalist Matina Stevi, an employee of The New York Times, who had requested, based on the Access to Documents Regulation, the transmission of all text messages exchanged between the two officials between January 1, 2021 and May 11, 2022, in the context of negotiations for the purchase of vaccines against COVID-19. This is a 2.7 billion euro transaction, the conclusion of which has raised several suspicions since the negotiation and which has determined.
The Commission rejected the request, arguing that it does not possess the documents in question. In response, the journalist and The New York Times brought an action before the General Court of the European Union, requesting the annulment of the decision. In its ruling, the General Court ruled in their favor, emphasizing that the European Regulation aims to ensure the widest possible public access to the documents of the European institutions. Access must be the rule, and exceptions must be rigorously justified.
The General Court found that the Commission's responses regarding the alleged non-existence of the messages were vague, oscillating or based on mere assumptions, without solid reasoning. In contrast, the complainant presented sufficient evidence and indications supporting the idea of the existence of these exchanges of messages, especially in the context of critical negotiations on the purchase of vaccines during the pandemic.
The General Court thus concluded that the presumption of non-existence of the documents, which was initially based on the institution's statement, had been rebutted. In such a situation, the Commission cannot limit itself to a simple denial, but must provide clear and plausible explanations enabling an understanding of why the messages in question could not be identified or accessed.
The Commission did not specify what type of searches it had carried out, nor where those searches had been carried out. It also did not provide any clarification as to whether the messages had been deleted - whether this had occurred, whether it was automatic or intentional, and whether President Ursula von der Leyen's phone had been replaced in the meantime. Furthermore, it did not justify why it considered that those messages did not contain relevant information requiring their retention in accordance with administrative obligations.
The General Court therefore held that the lack of a coherent explanation and of concrete steps to identify the documents infringed the right to public access. The Commission's decision was therefore annulled, setting an important precedent for institutional transparency at European level.
The General Court's decision can be appealed to the Court of Justice of the European Union, but in the meantime it puts increased pressure on the institutions to review their archiving practices and response to requests for access to information.
The European Commission said in a press release that it would "closely examine the General Court's decision and decide on the next steps".
"The Court does not call into question the Commission's record-keeping policy on access to documents. These rules aim to ensure the integrity of the Commission's records and full transparency by ensuring that important documents drawn up or received by the Commission are easily accessible to interested EU citizens. The Commission will now closely examine the Court's decision and decide on the next steps. To this end, the Commission will adopt a new decision providing a more detailed explanation. Transparency has always been of paramount importance to the Commission and to President von der Leyen. We will continue to strictly respect the robust legal framework in place to implement our obligations. We remain fully committed to maintaining openness, accountability and clear communication with all stakeholders, including EU institutions, civil society and interest representatives," the EU Executive said in a press release.
We note that in connection with the negotiation and acquisition in question, the European Public Prosecutor's Office announced in September 2022 the opening of a criminal case in rem (regarding the facts), but about which the institution led by Chief Prosecutor Laura Codruţa Kovesi did not provide any other details, except that checks are still being carried out. Furthermore, the Liege court was notified by the Belgian lobbyist Frederic Baldan and the French association BonSens, regarding the above issues, accusing Ursula von der Leyen of abuse of office, a complaint to which other injured parties also agreed, but so far no decision has been made in the case, because the European Public Prosecutor's Office has stated that it has jurisdiction over the respective file.
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