EU judges grill Ursula von der Leyen’s lawyers over missing text messages 

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The EU’s general court has questioned why Ursula von der Leyen refused to disclose text messages she exchanged with the chief executive of Pfizer during the Covid-19 pandemic, in what is shaping up as a landmark transparency case for the bloc.

The New York Times in 2021 reported that the European Commission president and Pfizer executive Albert Bourla had exchanged text messages during the bloc’s negotiations with several pharmaceutical companies to secure coronavirus vaccines. The US paper has sued the commission over its subsequent refusal to disclose the messages.

On Friday, judges in Luxembourg quizzed the commission’s lawyers for several hours about the nature of the exchanges between von der Leyen and Bourla and the efforts made to retrieve those messages.

Von der Leyen’s push to purchase Covid vaccines on behalf of EU member states, including a contract with Pfizer for about 1.8bn doses, has frequently been cited as one of the biggest successes of her first term. But the commission is facing increased scrutiny over the terms of those multibillion-euro contracts negotiated behind closed doors.

In a separate case in July, the general court found that the commission had concealed details of the contracts agreed with vaccine makers Pfizer, Moderna and AstraZeneca, ordering it to disclose information including declarations about conflicts of interests among the officials involved. The commission has appealed against the ruling.

The NYT case could set an important precedent for the bloc’s transparency rules and what it classifies as official documents accessible to the public. The commission has argued that it was unable to locate von der Leyen’s text messages and that they did not qualify as official documents due to their “ephemeral nature”.

Commission lawyer Paolo Stancanelli on Friday said he could not confirm nor deny the existence of messages exchanged between von der Leyen and Bourla. “If the text messages contained substantive information, they would have been registered” in the commission’s record for official documents, Stancanelli said.

Since his client could not confirm the existence of the messages, Stancanelli told judges he was unable to “tell you the nature of these messages”. If those texts had been exchanged, he said, they would have been merely to plan further discussions between von der Leyen and Bourla, and would not have contained any pertinent information.

Stancanelli said the commission did not keep a record of text messages sent from official phones unless they were filed and saved as official documents. 

Several of the judges at the hearing seemed dissatisfied with that reasoning.

“The commission is saying that . . . a court who is supposed to control the legality of your decisions has to simply take your word for it,” said Iko Nõmm, one of the judges.

“I have a feeling that you try to lower the importance of this case,” said Krisztián Kecsmár, another judge who added that transparency and access to documents in the EU were part of citizens’ fundamental rights.

NYT lawyer Bondine Kloostra also underscored the “vital role in democratic oversight” played by transparency and public access to government records. She said the case was significant as it posed a question about “whether officials may evade public transparency by communicating via text messages”.

The general court is expected to hand down its judgment in a few months. The judgment can then be appealed at the highest EU court, the European Court of Justice.