Secret' text messages between von der Leyen and Pfizer CEO: ban on journalists lifted

The EU General Court has annulled the European Commission's decision to deny access to the New York Times to all text messages exchanged between President Ursula von der Leyen and Albert Bourla, Pfizer's CEO, between 1 January 2021 and 11 May 2022. According to the European Court of First Instance, the answers provided by the Commission throughout the proceedings regarding the requested text messages 'are based either on assumptions, or on mutable or inaccurate information' in addition to the fact that the Commission 'did not provide plausible explanations to justify the non-possession of the requested documents'. The exchanges between von der Leyen and Bourla concerned the negotiation for the purchase of the vaccines.

The decision of the EU General Court does not close the case, because the Commission may decide to appeal it to the Court within two months and ten days limited to points of law. However, the European Commission may decide to take corrective action by respecting the principle of access to the requested documents. For President von der Leyen, the Court's decision is a significant political and image blow. And it is paradoxical that this is happening on an issue, that of the supply of vaccines in the midst of a pandemic, for which Brussels' drive, the action of Brussels, has been decisive in securing vaccines for the population.

The case originated in the refusal of the New York Times correspondent alloa, Matina Stevis-Gridneff, to see the text messages exchanged between von der Leyen and Bourla on the grounds that she was not in possession of the documents. Hence the appeal which was upheld by the Court today. The latter states that the regulation on access to documents aims to give maximum effect to the public's right of access to documents held by the institutions. In principle, "all documents of the institutions should therefore be accessible to the public, however, when an institution states, in response to an application for access, that a document does not exist, the non-existence of the document is presumed, in accordance with the presumption of truthfulness with which that statement is furnished. However, this presumption may be overcome on the basis of relevant and concordant elements provided by the applicant.

In the present case, the Court observes that the answers given by the Commission throughout the proceedings concerning the text messages requested 'are based either on assumptions, or on mutable or inaccurate information'. The New York Times presented relevant and concordant evidence describing the existence of exchanges, in particular in the form of text messages, between the President of the Commission and the CEO of Pfizer in the context of the Commission's purchase of vaccines from that company during the pandemic. Consequently, they 'succeeded in overcoming the presumption of non-existence and non-possession of the requested documents'.

In such a situation, the Commission 'cannot simply assert that it is not in possession of the requested documents, but must provide credible explanations enabling the public and the Court to understand why those documents cannot be found'. Well, the Commission "has not explained in detail what kind of searches it would have carried out to find these documents, nor the identity of the places where they would have taken place. It did not provide plausible explanations to justify the non-possession of the requested documents. Moreover, it did not sufficiently clarify whether the requested text messages had been deleted and, if so, whether the deletion was done voluntarily or automatically or whether the President's mobile phone had been replaced in the meantime'.