The European Commission did not give the public sufficiently wide access to certain provisions of the contracts for the purchase of Covid-19 pandemic vaccines, ruled the General Court of the European Union in a judgment delivered on Wednesday 17 July (Joined Cases T-689/21 and T-761/21).
Invoking Regulation (EC) No 1049/2001 regarding public access to documents held by the EU institutions, five MEPs from the Greens/EFA Group and individuals are challenging the partial access that the European Commission had granted to contracts for the purchase of approximately one billion doses of Covid-19 vaccines that it had concluded with pharmaceutical companies (AstraZeneca, Pfizer, CureVac, etc.) totalling €2.7 billion.
In its judgments, the General Court partially upholds the two pleas and annulled the part of the Commission’s decisions containing irregularities.
In particular, it criticises contract clauses relating to compensation paid by Member States to pharmaceutical companies for any damages they may have to pay if their vaccines fail. In its view, the Commission had not demonstrated that greater access to the provisions on compensation for pharmaceutical groups would harm the commercial interests of the latter, since the June 2020 agreement between the Commission and the Member States on the purchase of Covid-19 vaccines acknowledged the possibility of compensating pharmaceutical groups for the risks associated with shortening the timeframe for the development of vaccines (see EUROPE 12508/4).
The Court also found that the Commission had not provided sufficient explanations as to how access to the definitions of ‘wilful misconduct’ and ‘best reasonable efforts’ included in some of the contracts would affect those commercial interests. The same applies to access to contractual provisions relating to donations and resales of vaccines.
Finally, the Court is of the opinion that the complainants have duly demonstrated the specific public interest purpose of disclosing the personal data of the members of the negotiating team for the purchase of the vaccines, whereas the Commission invoked privacy to refuse to disclose such information. Only if they had their names and their professional or institutional roles would they have been able to check that the members in question were not in a conflict of interest situation, it adds.
Commenting on the ruling, a Commission spokesperson, Stefan de Keersmaecker, said that the Court had sided with the EU institution on “90%” of the points raised in the case. In particular, he noted that, according to the European court, the protection of commercial interests effectively covers “the clauses of the contracts concerning the location of production sites, the provisions on intellectual property rights, the provisions on advance payments and access to delivery schedules”.
Admittedly, the Court ruled that the Commission should have provided more explanations to justify the refusal of access to certain provisions of the contracts. But this is “more a problem of justifying a decision than of its content”, noted Mr de Keersmaecker. He also noted the “very clear governance procedure” put in place to negotiate these contracts. This included “a negotiations team with representatives of Member States” and “a steering board” on which all the Member States were represented to ensure that “their needs and specific concerns” were taken into account.
“The Court confirms the need to provide solid justification for invoking the protection of commercial interests. This ruling is important insofar as the European Commission should carry out more joint procurement in areas such as health and defence. The new Commission must now strive to improve access to documents in the public interest in order to comply with this judgment”, said Tilly Metz (Greens/EFA, Luxembourg), one of the complainants, in a press release.
However, for Peter Liese (EPP, German), “the conclusion that the Commission got everything wrong can be disproved from the outset with this ruling”.
‘Pfizergate’. Another case concerning exchanges between the President of the Commission, Ursula von der Leyen, and the CEO of Pfizer is still pending (see EUROPE 13402/32). Another Commission spokesperson, Christian Wigand, said that the EU institution had sent a note to the other EU institutions with a view to agreeing a common approach to the use of communications media.
See the General Court’s judgment: https://aeur.eu/f/d25 (Original version in French by Mathieu Bion)