BRUSSELS ― EU judges dealt the European Commission a stinging defeat — and transparency campaigners a major win.
In a long-awaited ruling with huge political and legal implications, the EU’s General Court ruled against the Commission over its refusal to release text messages between Commission President Ursula von der Leyen and Pfizer CEO Albert Bourla at the height of Covid-19 vaccine negotiations in 2021.
Here’s what you need to know.
What was Pfizergate all about?
The Commission’s denial of a journalist’s request for access to documents breached the principle of good administration, enshrined in EU law, according to Wednesday’s General Court ruling.
The case stems from an access to documents request filed in 2022 by New York Times journalist Matina Stevis-Gridneff, who asked to see communications — including text messages — between von der Leyen and Bourla, after their existence was revealed in an interview.
The Commission initially claimed the messages didn’t qualify as documents according to its internal rules due to their ephemeral nature, and that no such texts could be found in its archives. It maintained ambiguity over their existence, and at the same time denied their importance ― while never truly clarifying how it handled the request.
That led to suspicions it simply didn’t really look for them ― despite rules that apply to EU administrations regarding transparency obligations, the court ruling said.
“The Commission breached the principle of good administration by confining itself … to invoking the non-existence of the requested documents without providing any explanation as to why the requested documents could not be found,” the court said.
Why should we care?
It is a landmark legal decision ― as well as a political bombshell for von der Leyen herself.
“Cases related to access to documents from European institutions are often highly political, because if the matter ends up before a judge, it’s usually because the Commission or another institution is stubbornly refusing to disclose information that could cause it political harm,” said Vincent Couronne, a researcher in European law at Paris-Saclay University.
The ruling doesn’t just say the Commission got it wrong — it says it should have known better.
The judges scolded the Commission for effectively demanding that the applicant prove the texts existed, which is an “impossible” standard for ordinary citizens.
The ruling is also particularly damaging because of the profile of the players involved. Von der Leyen is the EU’s most powerful official and guardian of the EU treaties. Bourla is one of the most powerful pharma executives in the world. It’s the biggest contract the EU has ever signed, the European Court of Auditors said.
And it’s critical for the Commission as a whole, which seems to have only reluctantly observed EU laws when it meant holding its own boss accountable.
Transparency advocates, who argue the Commission should set the standard for openness, not dodge it, claim a major victory.
“This ruling is about more than transparency: it is about reinstating the institutional accountability the European Commission has been sorely lacking,” said Shari Hinds, policy lead on EU political integrity for NGO Transparency International.
So where does that leave doing politics by WhatsApp?
The case underscores a major gray zone in EU transparency rules: Are text messages official documents?
“Documents are any content, whatever its medium, concerning the policy of the European Union so from this point of view … it’s hard to argue that SMS messages are not documents,” Couronne said. “This ruling could encourage European elected representatives and civil servants to prefer oral exchanges to SMS. In today’s business communications ecosystem, the line between SMS, email, WhatsApp, Slack and the like has become very thin.”
The court didn’t say every text is a public record. But it did confirm that messages can fall under transparency laws if they concern official business. It’s a warning shot to EU institutions and all those who try to influence them: Digital messages aren’t automatically off the books, and you can’t totally avoid scrutiny by using them. In practice, it remains to be seen how far one can access any texts.
Are things going to heat up for von der Leyen?
Probably.
Critics from across the spectrum — especially the Greens and far right — have long kept the issue alive. But now mainstream political heavyweights are chiming in, calling the ruling a major embarrassment for the Commission.
Dutch MEP Raquel García Hermida-van der Walle from centrist group Renew branded the decision a “slam dunk for transparency.”
Ultimately though, real EU power still lies in national capitals — and there’s very little uproar coming from them after the decision.
Where does the Commission go from here?
The Commission will now likely have to reconsider the initial request for access, conduct proper searches and provide new legal reasoning if it fails to disclose those documents again. It will also have to pay the legal costs for the New York Times, judges ruled.
The court noted that the Commission’s interpretation of what qualifies as a document — and for how long it must be kept — didn’t deprive anyone of their rights to request a document or on the Commission’s obligation to search for it.
Internal practices may now come under scrutiny and the Commission might have to clarify its own rules internally.
The Commission also has two months to decide if it appeals the Court’s ruling.
So, will we ever get to see these text messages?
Maybe — but don’t hold your breath.
The ruling concedes that retrieving the messages might be difficult. Phones may have been changed. Data might be gone.
“When questioned on that point at the hearing, the Commission stated that it assumed that its president’s mobile phone had been replaced” since the New York Times brought the case, “as it was a mandatory rule for security reasons,” the ruling said.
But pressure is mounting on the Commission to at least do proper searches now and provide a proper legal reasoning if it says again it can’t retrieve the documents.
From its early statement on Wednesday morning after the ruling, it seems that the Commission is leaning towards providing new reasoning as to why it can’t fulfill its transparency obligations, saying it would “adopt a new decision providing a more detailed explanation.”
There is another route though. The European Public Prosecutor’s Office is already conducting a criminal probe into vaccine procurement. That means investigators could, in theory, access telecom providers or app servers to retrieve deleted messages — depending on local data retention laws.
The post Pfizergate: Will we ever see von der Leyen’s texts? ― and other burning questions appeared first on Politico.
