Ursula von der Leyen has suffered a humiliating legal setback after a top European court ruled the European Commission was wrong to block access to text messages she exchanged with Pfizer’s chief executive during the COVID-19 pandemic. The General Court of the European Union, based in Luxembourg, delivered a damning verdict in favour of The New York Times, which brought the case after the Commission claimed the texts with CEO Albert Bourla could not be located.
Judges said the US newspaper had “succeeded in rebutting the presumption of non-existence and of non-possession” of the messages, exposing what critics described as an institutional culture of secrecy at the heart of the EU. The court said: “The Commission cannot merely state that it does not hold the requested documents but must provide credible explanations. It has not sufficiently clarified whether the requested text messages were deleted and, if so, whether the deletion was done deliberately or automatically.”
The ruling, seen as a major victory for transparency campaigners, piles pressure on Mrs von der Leyen over the opaque nature of the EU’s vaccine negotiations during the pandemic. The Commission has two months to decide whether to appeal to the European Court of Justice — but legal experts say the decision is so clear-cut that overturning it is highly unlikely.
Paivi Leino-Sandberg, a law professor at the University of Helsinki who is pursuing a related case, said: “The Commission lost so completely and on every possible ground that overturning this in the ECJ seems extremely unlikely. This is a huge victory for transparency.”
The case centres on messages reportedly exchanged in early 2021, as the EU tried to secure supplies of COVID-19 vaccines amid growing public anger over sluggish deliveries and supply shortfalls — particularly from AstraZeneca.
Mrs von der Leyen later confirmed she had been in direct contact with Mr Bourla, telling the New York Times she had exchanged texts and calls with him for a month straight.
At the time, she was publicly describing Pfizer as “a reliable partner.” Meanwhile, negotiations were underway for a massive €2.7billion (£2.27bn) contract for more than a billion vaccine doses — one of the largest pharmaceutical purchases in EU history.
But access was requested access to those communications under EU freedom of information laws, the Commission responded by claiming it held no record of them. It argued that text messages are “ephemeral” in nature and not necessarily subject to the same disclosure rules as other documents.
The court rejected that argument outright, stating that the Commission’s duty to provide transparency applies regardless of format. It ruled that the Commission had failed to plausibly explain why the messages were missing or what happened to them.
The court said: “It is for the institution concerned to examine in a concrete and effective manner whether a document requested is in its possession. The Commission is therefore required to carry out a sufficient search.”
In its response, the Commission said it would “study the ruling carefully and decide on the next steps.” It added: “Transparency has always been of paramount importance for the Commission and President von der Leyen.”
Critics accused the Commission of trying to conceal aspects of the vaccine procurement process, which came under intense scrutiny during the pandemic. Some EU lawmakers have previously demanded that Mrs von der Leyen disclose all relevant communications amid concerns over lobbying and accountability.
Nicole Taylor, a spokesperson for The New York Times, said: “Today’s decision is a victory for transparency and accountability in the European Union. It sends a powerful message that ephemeral communications are not beyond the reach of public scrutiny.”
Shari Hinds of Transparency International said the verdict should mark the end of the Commission’s restrictive approach to public access. She said: “This should serve as a catalyst for the Commission to finally change its attitude to freedom of information.”