The European Union's General Court, the second-highest court in the bloc, issued a ruling that forces the President of the European Commission (EC), Ursula von der Leyen, to release text messages between her and Pfizer CEO Albert Bourla regarding negotiations for COVID vaccines.
At issue was the bloc's negotiations with Pfizer for a multi-billion-dollar contract to obtain the Pfizer vaccine. The EU claimed that the text messages between von der Leyen and Bourla were not required to be released under the EU's strict transparency rules because they were "short-lived."
“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,” the court’s judges said in their decision.
“The Commission 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,” they added.
Deutsche Welle (DW) reports that the decision represents a "significant legal and political blow to the EU's executive arm." It's also a setback for von der Leyen, who has come under increasing fire for a lack of transparency.
"Von der Leyen has gathered more power than any other president before her, leading the Commission with a centralized and secretive approach — and this has clearly backfired," Olivier Hoedeman of Corporate Europe Observatory, a Brussels-based watchdog, told DW.
Nick Aiossa, director of the anti-corruption group Transparency International, said, “It’s a case about transparency, but ultimately, it’s a case about accountability."
At the time the text messages came to light in a New York Times story about the vaccine negotiations, DW reporter Alexander Fanta filed a Freedom of Information Act request with the EC requesting the text messages. When the request was turned down, the New York Times also filed an FOIA request and was rebuffed. That led to a court case that has many wondering just what is in those texts that von der Leyen is so anxious to keep from the public.
Commission representatives have not said whether anyone at the commission other than Ms. von der Leyen at any point reviewed the contents of the messages. At one point it said that it could not find the relevant messages.
And Paolo Stancanelli, a lawyer representing the commission, said during a hearing in November that “I am not able to tell you until when they existed, or if they still exist.”
When both sides laid out their cases in Luxembourg at that hearing last year, lawyers for The Times argued that the European Commission actively encouraged its staff members to use disappearing text messages in communication.
The Commission can now appeal the ruling to the Court of Justice of the European Union (CJEU), where observers say it isn't likely to be overturned.
"The Commission keeps repeating its commitment to transparency, but when it comes to implementing those principles, it's falling short," Päivi Leino-Sandberg, Professor of Transnational European Law at the University of Helsinki, told DW. Leino-Sandberg added that the EC didn't "even acknowledge the problem."
It's clear that von der Leyen has brought this scandal on herself through her secretive administration.
Hoedeman argued that by presiding over the very institution tasked with enforcing EU law and overseeing the vaccine negotiations directly, von der Leyen had played a dual role that had "created a clear conflict of interest." He said that the ruling was thus not only a scandal for the European Commission but for its president herself.
He said that when an institution responsible for enforcing transparency failed to hold its own leadership to account, public confidence eventually took a hit, particularly if the leadership appeared to benefit from a lack of scrutiny. "This has damaged trust in both the Commission and the EU as a whole," he explained.
It's still unclear whether the text messages exist. What's certain is that the Commission must now carry out a proper search for the texts and document everything they are doing to find them.
Will von der Leyen be forced to resign? That possibility became more likely with the conclusion of this court case.
