Pfizergate: von der Leyen's reputation goes on trial tomorrow

On Friday (15 November), the European Court of Justice will hold a hearing in the case brought by the New York Times against the European Commission, for its refusal to release text messages between Ursula von der Leyen and Pfizer CEO Albert Bourla, regarding the multibillion-euro Covid-19 vaccine contracts.

The commission has claimed that it "does not hold" the messages requested, and that the exchanges, as "short-lived" app-based communications, are not subject to record-keeping requirements. 

The case not only highlights the opaque practices inside the European Commission but also puts von der Leyen's record on transparency and accountability on trial.

What’s at stake in Pfizergate goes way beyond the procurement of vaccines. It’s about the broader practices of the commission when it comes to handling and disclosure of public information. 

Access to documents in the European Union is governed by Regulation 1049/2001. A cornerstone of EU transparency, the regulation has faced continuing challenges to its implementation, as EU institutions find it all too easy to simply disregard their own obligations. In Pfizergate, the commission conveniently claimed that the requested messages did not exist, without offering any further reasoning —  clearly violating its responsibilities to state reasons when refusing an access request. 

If the court were to side with the New York Times, it would set a powerful precedent, forcing the Commission to release the requested information. This, in turn, could reshape the whole landscape of transparency in the EU. 

Pfizergate has exposed the profoundly outdated understanding of what constitutes "documents". The EU access to information law and practices completely neglects modern forms of communication, like text and instant messages — part and parcel of how officials communicate on matters of public interest. Text messages were an important part of the Covid-19 pandemic response and the emergency procurement of vaccines. They must therefore be subject to the same rules as any other official documents. 

If the court were to side with the New York Times, it would set a powerful precedent, forcing the Commission to release the requested information. This, in turn, could reshape the whole landscape of transparency in the EU

The court plays a critical role as it is the only EU institution with powers to hold the commission accountable for commitments to improve its transparency.

It now has a unique opportunity to establish a new principle that all forms of communication, including those on private channels like text messages, WhatsApp and Signal, are recognised as part of the public record and subject to access requests.

Criminal offence

Progressive precedent already exists: in 2021, the United Kingdom’s Information Commissioner’s Office, updated its guidance to ensure that all communications on private channels are subject to FOI requests.

In the UK it is also a criminal offence for public officials to delete or conceal such information.

Despite promises made during the previous administration, the commission has yet to issue internal guidance on the use of modern communication tools. A ruling in favour of transparency would put pressure on the institution to follow through on these commitments and adopt more robust measures to ensure accountability in the future.

The case will also have far-reaching implications on the way von der Leyen intends to lead in her second mandate.

At a time when trust in EU institutions is fragile, maintaining a culture of secrecy risks fuelling public cynicism and anti-EU sentiment in member states and accession countries alike, not least in Moldova and Georgia. 

The commission’s persistent disregard of the significance of these issues, as highlighted in a recent report from Access Info Europe I contributed to, sends a clear signal to EU member states that opacity is tolerated and accountability is optional. This weakens the integrity of the whole Union.

This case then challenges the EU's whole approach to transparency and accountability, principles that are fundamental to its legitimacy. A ruling in favour of the New York Times and greater transparency would not only clarify the commission’s obligations under existing regulation but also send a strong message about the importance of safeguarding the EU's core values. 

As von der Leyen enters her second term, she has the opportunity to  demonstrate and reaffirm the Commission’s commitments to those values, strengthen the institution's legitimacy in the eyes of its citizens, and ultimately restore trust in her leadership.

It’s an opportunity she should welcome.