The case opposing the New York Times and the EU Commission over its failure to disclose text messages between president Ursula von der Leyen and Pfizer CEO Albert Bourla about COVID-19 vaccine contracts has entered the hearing phase.
A pivotal legal case between The New York Times and the European Commission heard in Luxembourg on Friday could set a new benchmark for public access to EU documents.
The case was triggered by former New York Times Brussels bureau chief Matina Stevis-Gridneff, and focuses on transparency issues surrounding vaccine procurement during the COVID-19 pandemic, with a particular emphasis on the Commission’s failure to disclose text messages sent between European Commission President von der Leyen and Pfizer CEO Albert Bourla.
In April 2021, The New York Times reported on text messages exchanged between von der Leyen and Bourla regarding vaccine contracts.
The publication uncovered the existence of these messages during interviews with Bourla but faced hurdles when requesting access to them. The Commission claimed it could not provide the texts.
After repeated failed attempts to obtain the messages, The New York Times escalated the matter to the European Court of Justice (ECJ) in January 2023.
The core arguments
While the case originated from vaccine procurement during the pandemic, the central question revolves around transparency.
The New York Times argues that, under the EU’s 2001 regulation on public access to documents, text messages qualify as “documents” and should be preserved and made available upon request.
The regulation defines a document as “any content, whatever its medium (written on paper, stored in electronic form, or as a sound, visual, or audiovisual recording), concerning a matter relating to the policies, activities, and decisions within the institution’s sphere of responsibility.”
The New York Times contends the Commission failed to properly document and register the text messages. However, the Commission’s lawyers argue that text messages, by their nature, are short-lived and do not meet the criteria for inclusion in the institution’s document management system.
The Commission further claims that such texts would have been registered only if they contained substantial information requiring action or follow-up.
Pfizer CEO Albert Bourla’s statements in the interview suggest that the texts were limited to private conversations between him and von der Leyen, according to the Commission.
Despite a “renewed, thorough, but unsuccessful” search, the Commission maintains that the messages were not archived because they did not meet the criteria for official documentation.
When contacted by Euronews, the European Commission declined to comment.
Vaccine contracts under scrutiny
The Pfizer-BioNTech vaccine was the first to receive EU authorization in December 2020, after an advance purchase agreement for 200 million doses.
Subsequent contracts in March and May 2021 secured an additional €2.4 billion worth of doses, with an option for 900 million more.
While these contracts initially promised relief from the pandemic, transparency issues have since clouded the process.
This case is one of several controversies surrounding the EU’s COVID-19 vaccine purchases.
Earlier this year, the ECJ annulled a Commission decision to redact key sections of COVID-19 vaccine contracts, ruling that the institution had not provided sufficient access to purchase agreements.
Meanwhile, the European Public Prosecutor’s Office (EPPO) launched an investigation in October 2022 into the EU’s vaccine procurement, though no conclusion has been reached.
A Belgian tribunal in Liège is expected to decide in December whether it or the EPPO has jurisdiction over potential misconduct allegations.
The Luxembourg hearing is not expected to result in a swift judgment, with months usually elapsing between hearings and rulings.
