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The EU’s general court has ruled against the European Commission in a battle over the publication of private text messages between president Ursula von der Leyen and Pfizer’s chief executive during negotiations to supply Covid-19 vaccines.
The New York Times had sued the commission over its refusal to disclose the messages which were exchanged in 2021. The general court on Wednesday rejected the commission’s argument that it could not find them, forcing the institution to search again or provide a more plausible explanation for why they cannot be made public.
“The commission did not provide . . . any plausible explanation as to why it had not been able to find the requested documents,” the court said in its ruling.
By not fulfilling its obligations regarding access to documents, the commission “breached the principle of good administration” which is enshrined in the EU charter of fundamental rights, the court ruled.
The ruling, which can be appealed at the European Court of Justice, the bloc’s highest court, could set a landmark precedent for democratic oversight and journalists’ access to official documents, including text messages.
Von der Leyen’s push to buy Covid-19 vaccines on behalf of EU member states, including a contract with Pfizer for about 1.8bn doses, is viewed as an important success of her first term. But the commission is facing scrutiny over how these multibillion-euro contracts were negotiated, a process that took place behind closed doors.
The commission has argued that it was not able to locate von der Leyen’s text messages exchanged with Pfizer’s Albert Bourla, and that such messages do not qualify as official documents because of their “ephemeral nature”. The commission has said that if text messages with “substantive information” had existed, they would have been archived.
The court found that the searches carried out by the commission for the text messages “do not suffice to provide a credible explanation of why those documents could not be found”. Nor did the EU executive explain “why it reached the conclusion that the text messages . . . had not been deemed to contain important information”, the court said. It added the New York Times had successfully rebutted arguments by the commission that the texts might not exist at all.
“Today’s decision is a victory for transparency and accountability in the European Union, and it sends a powerful message that ephemeral communications are not beyond the reach of public scrutiny,” the New York Times said.
“The court recognised the European Commission’s mishandling of this request and made clear that officials have an obligation to retain and produce relevant records, including text messages,” it added.
In a statement published after the ruling, the commission acknowledged it should “have provided a more detailed explanation” about the missing messages, adding that it would “closely study” the decision and “decide on next steps”.
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