The EU General Court has annulled the European Commission's decision to deny The New York Times access to all text messages exchanged between President Ursula von der Leyen and Albert Bourla, CEO of Pfizer, between January 1, 2021, and May 11, 2022.

The Commission claimed not to be in possession of them but according to the Court "did not provide plausible explanations to justify its non-possession of the requested documents".

The decision does not close the case because the Commission can decide to appeal it to the Court within two months and ten days limited to points of law. " The Commission will carefully examine the Court's decision and decide on the next steps. To this end, it will adopt a new decision" with "a more detailed explanation", the EU executive itself writes in a note. "Transparency has always been of paramount importance for the Commission and President von der Leyen" and "we will continue to fully respect the existing strong legal framework, rigorously fulfilling our obligations. We remain fully committed to ensuring openness, accountability and clear communication with all stakeholders, including EU institutions, civil society and stakeholders".

The exchanges between von der Leyen and Bourla concerned the negotiation for the purchase of vaccines during the pandemic and the whole case started from not allowing the New York Times correspondent at the time, Matina Stevis-Gridneff, to read the messages. The reason? They did not have the documents. Hence the appeal accepted today by the Court which indicates how the regulation on access to documents "aims to give maximum effect to the public's right of access to documents held by the institutions". In principle, "all documents of the institutions should therefore be accessible to the public, however, when an institution states, in response to a request for access, that a document does not exist, the non-existence of the document is presumed, in accordance with the presumption of truthfulness with which such a statement is equipped".

For the Court, the answers provided by the Commission throughout the proceedings regarding the requested text messages "are based either on assumptions or on changing or imprecise information". In particular, the New York Times demonstrated the existence of exchanges, in particular in the form of text messages, between the President of the Commission and the CEO of Pfizer. Consequently, "they succeeded in overcoming the presumption of non-existence and non-possession of the requested documents".

In such a situation, the Commission "cannot simply state that it does not possess the requested documents, but must provide credible explanations that enable the public and the Court to understand why those documents are untraceable ". The Commission " did not explain in detail what type of searches it would have carried out to find those documents, nor the identity of the places where those searches would have been carried out . It did not provide plausible explanations to justify its lack of possession of the requested documents. Furthermore, it did not sufficiently clarify whether the requested text messages had been deleted and, if so, whether the deletion had been carried out voluntarily or automatically or whether the President's mobile phone had been replaced in the meantime".

Finally, the Commission "has not even plausibly explained why it would have considered that the text messages exchanged in the context of the purchase of vaccines did not contain substantial information or that they required monitoring, the preservation of which should be ensured."

(Online Union)

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