EU’s court demands greater trans­parency from the Euro­pean Commis­sion.

On 14 May, the General Court of the European Union (EGC) ruled that the European Commission wrongly refused to publish text messages sent between the Commission President, Ursula von der Leyen, and the CEO of Pfizer, Albert Bourla. This was at the backdrop of the multi-billion dollar negotiations over vaccine contracts held back in 2021, which von der Leyen and Bourla allegedly conducted via text messages. The Court's decision could now have far-reaching implications for the European Commission's transparency and political accountability.

Back­ground to the ruling

The text messages exchanged between Commission President von der Leyen and Pfizer CEO Bourla were sent in 2021 during negotiations covering the procurement of COVID-19 vaccines. The proceedings were triggered by a New York Times journalist's request for access to the documents. She specifically requested access to the text messages between Ursula von der Leyen and Albert Bourla. The documents were requested to provide more transparency about the negotiations between the European Commission and Pfizer regarding the purchase of COVID-19 vaccines.  The agreement reached between the parties provided for the delivery of up to 1.8 billion doses of the vaccine, with an estimated contract value of approximately 35 billion euros. The precise terms of the agreement were not known in 2021 and 2022 and they still remain unknown to date.

Euro­pean Commis­sion’s argu­men­ta­tion

The European Commission had argued that the relevant text messages had not been archived and were therefore no longer available. It also pointed out that such text messages are not considered to be official documents and are therefore not subject to the transparency regulations. The EGC took a different view: The Court's view was that the Commission failed to provide a plausible explanation as to why the text messages could no longer be found. Furthermore, it also failed to explain why the relevant messages were not supposed to contain essential information about the negotiations.

Possible effects of the ruling

The ruling could have an effect on accountability and transparency within the EU’s institutions. Of particular relevance here is whether text messages (SMS or WhatsApp) also fall under the regulations covering access to EU documents. In its decision, the Court clarified its view that such text messages can certainly be considered to be official documents if they include official content. This means that the ruling could well enhance the right of access to information and increase the pressure on the EU’s institutions to adequately document these new forms of communication.

Outlook

This ruling is not yet legally binding. The European Commission could still contest the ruling and refer the matter to the European Court of Justice (ECJ). If the ruling is upheld, then the Commission would have to fundamentally revise its internal procedures for archiving and releasing digital communications. We have not heard the last of this!