The Commission took note of the decision on Wednesday by the European Court of Justice on the request to access to President von der Leyen’s text messages to Albert Bourla, the chief executive officer of Pfizer, but continues to refuse to disclose the documents.
As previously reported by The Brussels Times, a key aspect of the legal case is transparency, and the ruling will determine whether text messages can be considered as public documents under EU law. However, it could also raise wider questions about the Commission President’s role in negotiating the vaccine contracts with Pfizer during the COVID-19 pandemic.
The Commission claims that all negotiation with Pfizer was conducted by its negotiating team, in close coordination with the EU Member States, and not by von der Leyen personally. This begs the question why the Commission since May 2021, when a journalist writing for The New York Times asked for access to text messages, refused to disclose them.
Misleading information
The Commission even mislead the European Ombudsman in giving the impression that the text messages did not exist and could not be found. In its inquiry, which was closed in July 2022, the Ombudsman found that the Commission’s response to the request amounted to maladministration.
The Commission had claimed that it could not identify any text messages. The Ombudsman inquiry revealed that the Commission did not explicitly ask the President’s personal office (cabinet) to look for text messages.
“The narrow way in which this public access request was treated meant that no attempt was made to identify if any text messages existed. This falls short of reasonable expectations of transparency and administrative standards in the Commission,” said Emily O’Reilly, the Ombudsman at the time.
In recent press conferences and technical briefings, ahead of the Court decision, the Commission continued to repeat that it had been unable to identify von der Leyen’s text messages because they had not been registered.
Why not? Because the messages did not contain any substantive information relating to the Commission’s policy position in the vaccine negotiations and therefore were not considered enough important to classify as documents which need to be registered according to its internal rules on transparency.
These rules did apparently not exist back in 2022 when the Ombudsman asked for the text messages. Normally, in cases for access to documents, if the Ombudsman had been informed that the text messages existed and had not been deleted, she might have asked to read them in order to assess their confidentiality and whether they could be disclosed to journalists and the public.
At a press conference on Wednesday, the Commission’s chief spokesperson, Paul Pinho, made an effort to dispel the mystery around the existence of the text messages and the Commission’s handling of the request to access to them. First, the Commission checks if there are any registered documents and then it checks if there are any unregistered messages (such as text messages and emails).
Following these two checks, the Commission had concluded that documents in the scope of the request did not exist. This did not imply that the text messages have been deleted, she said, only that they did not qualify as documents because they were considered as unimportant and short-lived.
According to Commission’s press release, the Court found that the Commission should have provided a more detailed explanation in its decision that it does not hold documents of the requested type. The Commission wrote that it now will closely study the Court decision and decide on next steps. “To this effect, the Commission will adopt a new decision providing a more detailed explanation.”
The spokesperson declined to reply to a question at the press conference if the Commission still thinks that the text messages were not relevant. The Commission hopes that its new decision will be more solid and not lead to an appeal.
Annulment of decision
In fact, the Court annulled the Commission’s decision not to grant access to the text messages. The Court ruled that where an institution states that a document does not exist in the context of an application for access, the non-existence of that document is presumed, in accordance with the presumption of veracity attaching to that statement.
The Commission cannot merely state that it does not hold the requested documents but must provide credible explanations enabling the public and the Court to understand why those documents cannot be found. Accordingly, it has not given a plausible explanation to justify the non-possession of the requested documents.
The Commission has not sufficiently clarified whether the requested text messages were deleted. It has also failed to explain in a plausible manner why it considered that the text messages exchanged in the context of the procurement of COVID-19 vaccines did not contain important information or information involving follow-up the retention of which must be ensured.
According to the new rules, text messages should not be used for important information that is not short-lived. If this happened in the text messaging between the Commission President and the CEO of Pfizer is still unknown but will hopefully not happen again. The Commission has learned a lesson of how it handled the request, has updated its transparency rules and wants to leave ‘Pfizergate’ behind.
Update: While the recent controversy focused on the Commission’s transparency or rather lack of it in the negotiation process, the purchase of vaccines has been described as a success story by the Commission. It managed to buy and deliver hundreds of millions of vaccines in competition with other countries and the vaccinations goals in the EU were eventually achieved.
What functioned less well was the rollout of the vaccination programmes in the Member States. The Commission admitted also problems in an internal evaluation.
