The European Union’s top court has annulled the European Commission’s decision to deny The New York Times access to text messages exchanged between President Ursula von der Leyen and Pfizer CEO Albert Bourla. The European Court of Justice (ECJ) ruled that the Commission failed to provide a plausible explanation for its lack of possession of the requested documents.
This ruling comes after a lengthy dispute between the European Commission and The New York Times concerning transparency related to Pfizer COVID-19 vaccine contracts. The ECJ asserted that the Commission cannot simply claim it does not hold the documents; it must supply credible justifications for their non-availability.
The Court noted that The New York Times presented relevant and consistent evidence suggesting the existence of text messages concerning COVID-19 vaccine procurement. An EU official remarked that the contracts involved were unprecedented in a unique context, underscoring the importance of the ruling.
The Pfizer-BioNTech vaccine was the first to receive EU authorization in December 2020, following an advance purchase agreement for 200 million doses. Additional contracts finalized in March and May 2021 secured an extra €2.4 billion worth of doses, with an option for 900 million more.
The New York Times uncovered the existence of these messages during interviews with Bourla in 2021 but faced challenges when attempting to access them, as the Commission asserted it could not provide the texts. After several unsuccessful attempts to obtain the messages, The New York Times escalated the issue to the ECJ in January 2023.
In response to the ruling, the European Commission stated it would carefully study the General Court's decision and decide on subsequent actions. The Commission also indicated plans to adopt a new decision that would provide a more detailed explanation related to The New York Times' original request.
The ruling highlighted that the Commission has not adequately clarified whether the requested text messages were deleted and, if so, whether the deletion was intentional, automatic, or due to the replacement of the President’s mobile phone.
An EU official remarked on the numerous interactions that occur between Commission members and external stakeholders, emphasizing that it would be materially impossible to record all exchanges. The official noted that the Commission did not deny the existence of the text messages but maintained that the exchanges lacked significant information.
Under the EU's 2001 regulation on public access to documents, text messages qualify as "documents" that should be preserved and made available upon request. The regulation defines a document as any content related to the institution’s policies, activities, and decisions, regardless of its medium.
The ECJ concluded that the Commission must provide credible explanations for the absence of the requested documents and clarify the search methods employed to find them. The European Commission now has two months to appeal the Court of Justice’s decision.
