EU Commission loses legal battle over Vaccine text transparency

Setback for Ursula von der Leyen: In the dispute over the publication of text messages between the EU Commission President and the head of the pharmaceutical company Pfizer during the coronavirus pandemic, the EU Court in Luxembourg has ruled against the Commission. A lawsuit filed by the New York Times was successful on Wednesday. The Commission's refusal to release the chats was declared null and void. (Case T-36/23)

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The Brussels authority had argued that the text messages had not been archived and could therefore no longer be found. The court has now ruled that this explanation is not plausible. Like the newspaper, the Commission can still appeal against the ruling before the European Court of Justice as the next higher instance.

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Specifically, the case concerned messages that von der Leyen and Pfizer CEO Albert Bourla allegedly exchanged between January 2021 and May 11, 2022. During the pandemic, the EU had secured vaccines for the member states amid massive demand worldwide. The EU Commission chose Biontech/Pfizer as its main supplier. However, many aspects of the procurement were kept confidential, leading to accusations of a lack of transparency.

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Matina Stevi, a journalist for the "New York Times", requested access to the chats, but the Commission refused. Stevi and the newspaper then took their case to the EU General Court and were successful. The court referred to the regulation on access to documents. As a rule, all documents from the EU institutions should be accessible to the public, it stated. If an authority states that a certain document does not exist, this is initially assumed to be correct. However, this assumption could be invalidated.

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The Commission's answers throughout the proceedings were based either on hypotheses or on changing or inaccurate information, as the court explained. The newspaper, on the other hand, had presented relevant evidence that von der Leyen and Bourla had repeatedly exchanged information. The presumption that the documents did not exist had thus been refuted.

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The Commission had to provide plausible explanations as to why these documents could not be found, the court emphasized. However, it had not described exactly how or where it had searched for them. It was also not clear whether the messages had been deleted and whether this had happened voluntarily or automatically or whether the cell phone had been replaced in the meantime. Furthermore, it was not plausibly explained why the Commission did not find the chats important enough to keep them.