EU Ombudsman: Missing texts with Pfizer CEO are 'wake-up call'

The watchdog's plea comes after the commission said it was unable to find the text messages exchanged between von der Leyen and Pfizer CEO Albert Bourla over a deal for 1.8 billion doses of their Covid-19 vaccine.

The New York Times first revealed the existence of these messages — prompting Alexander Fanta, a journalist of news site netzpolitik.org and a regular EUobserver writer, to file a freedom of information (FOI) request to gain access to the commission's text messages with Pfizer and other documents.

But the commission's refusal to grant access to these communications triggered an investigation via the EU ombudsman.

O'Reilly found that the commission staff had never explicitly asked the president's office to look for the text messages — slamming this failure as mismanagement and calling on the EU executive to do a more exhaustive search.

In its response, the commission said it could not find the messages corresponding to the request for access to documents.

How hard did they look?

But the EU executive failed to clarify whether such messages still exist or have been deleted, nor did it provide any indication about how future requests for other text messages would be handled.

The ombudsman said the commission's recent response fell short to explain "whether it had looked directly and correctly for the text messages and if not, why not."

"The handling of this access to documents request leaves the regrettable impression of an EU institution that is not forthcoming on matters of significant public interest," said O'Reilly.

While public access to work-related text messages is "a new area" for the EU administration, she said that it is crucial to respond to such transparency demands — especially after the recent revelations of lobbying tactics by Uber car-riding firm, which include leaked text messages.

For his part, Fanta said that the ombudsman case was "a major step forward" in acknowledging the problem regarding secrecy of institutional communication.

"Reports such as the one by the New York Times are just the tip of the iceberg — there are certainly many, many more relevant exchanges that should have been registered, archived and handed out on access to documents requests," he told EUobserver.

Fanta also said that it is highly likely that the case of Von der leyen's texts with Pfizer will lead to legal action.

"It is quite frustrating that we still don't know whether von der Leyen's messages with Bourla exist or not," he said.

'Short-lived and ephemeral'

The commission previously argued that this type of "short-lived and ephemeral" communications do not fall under the scope of EU transparency rules on access to documents because they are not meant to contain important information relating to policies and decisions of the commission.

However, according to the ombudsman, "there is no doubt" that work-related text and instant messages should be recognised as EU documents — and therefore be subjected to the regulation on access to documents.

Under existing rules, a document is defined as "any content whatever its medium (written on paper or stored in electronic form or as a sound, visual or audiovisual recording) concerning a matter relating to the policies, activities and decisions falling within the institution's sphere of responsibility".

The commission tried to update the 20-year-old EU rulebook on transparency in 2015, but little progress has been made since then.

EU transparency commissioner Vera Jourová told the ombudsman that the commission is considering recommending its staff not use messaging apps in a business context — which would, as a result, eliminate the need to keep a record of such instant communications.

A similar policy applies currently to the European Council.

O'Reilly's recommendations argue that technological solutions should be put in place to enable the easy recording and search of such messages.

For its part, the commission said it had already launched talks with other EU institutions to come up with common guidance for their staff on the use of modern communication tools such as text and instant messages.

It added that the vaccines negotiations were held through a "clear and transparent process" — despite calls for further transparency over contracts and prices raised by various MEPs and civil society organisations.