In a judgment handed down on Wednesday 14 May (Case T-36/23), the General Court of the European Union annulled the European Commission’s decision [C(2022)8371] of November 2022 to refuse a journalist access to text messages exchanged between its President, Ursula von der Leyen, and the CEO of the US pharmaceutical group Pfizer, Albert Bourla.
Relying on the Regulation on access to documents of the EU institutions, former New York Times Brussels correspondent Matina Stevis is challenging the European Commission’s decision to deny her access to all text messages exchanged between Mrs von der Leyen and Mr Bourla between January 2021 and May 2022, on the grounds that the EU institution did not hold the documents in question.
In its judgment, the General Court upheld the application and annulled the Commission’s decision.
The European judge points out that when an EU institution states, in response to a request for access, that a document does not exist, the non-existence of the document is presumed. However, in the judge’s view, the complainant succeeded in rebutting this presumption on the basis of relevant and corroborating evidence (an article signed by the journalist and direct interviews she conducted with the two executives) describing the existence of informal exchanges between Mrs von der Leyen and Mr Bourla in the context of the Commission’s purchase of Covid-19 vaccines from this company for a sum of €1.8 billion.
The General Court considers that the Commission did not provide a plausible explanation for the fact that it did not have the requested documents in its possession. In its view, the institution cannot simply state that it does not hold the requested documents. It must explain why these documents cannot be found and detail the type of research it carried out to find them, including the storage locations consulted.
Furthermore, the General Court emphasised, the Commission had not sufficiently clarified why the text messages had been deleted and, in particular, whether the deletion had been voluntary or automatic. For example, at the hearing before the General Court, the EU institution was unable to say whether Mrs von der Leyen’s cabinet had looked for the requested documents in her mobile phone(s), as the head of the cabinet of the President of the Commission merely stated in writing that the cabinet was not in possession of the documents.
In its defence, the Commission argues that it is impossible to record and store all the documents produced by its staff. It is up to each European official to consider whether a document, including a text message, contains information that is substantial and not ephemeral or that requires action or follow-up on the part of the Commission. In fact, at the end of 2024, the institution revised its internal rules in this area to “bring clarity to new requests for access to documents”, according to its spokeswoman, Paola Pinho.
In the General Court’s view, the Commission did not justify why it considered that the text messages exchanged in connection with the purchase of Covid-19 vaccines did not contain substantial information or information requiring monitoring and thus the retention of which must be ensured.
A spokesperson for the New York Times described the General Court’s judgment as “a victory for transparency and accountability in the EU”, in that “the Court recognises the European Commission’s mishandling of this request” and that “ephemeral communications are not beyond the reach of public scrutiny”.
In a statement, the Commission noted that the General Court did not call into question its internal policy on the registration of documents for the purposes of applications for access. Reserving the right to appeal, the institution announced that it would adopt “a new decision providing a more detailed explanation” of the reasons why it had decided not to publish the disputed text messages.
For former European Parliament official Emilio De Capitani, the General Court’s judgment could have a major impact on the Commission and other EU institutions and bodies. The Commission will certainly have to take a new decision on the disclosure of documents, but it will have to “reorganise the way its staff and members of the Commission work through a binding text”, he told Agence Europe.
Mr De Capitani has just filed a new case (T-146/25) with the Court of Justice to challenge the Commission’s decision (2024/3080) of late 2024 that only registered documents constitute documents. “This de facto reduces the fundamental right to request documents”, he said.
Speaking on behalf of Transparency International, Shari Hinds said that the General Court’s judgment “is about more than transparency: it is about reinstating the institutional accountability the European Commission has been sorely lacking”. “This should serve as a catalyst for the Commission to finally change its restrictive attitude to freedom of information”, she added in a statement.
See the General Court’s judgment: https://aeur.eu/f/gts (Original version in French by Mathieu Bion with Lionel Changeur)