The General Court of the European Union in Luxembourg found today that the European Commission had not provided a credible explanation for its refusal to provide The New York Times with access to text messages exchanged between European Commission President Ursula von der Leyen and Pfizer CEO Albert Burla during the height of the Covid-19 pandemic.
"This decision represents a victory for transparency and accountability in the European Union and sends a strong message that ephemeral communications are not beyond the reach of public scrutiny," said New York Times spokeswoman Nicole Taylor, after the court overturned the European Commission's decision not to grant access to text messages.
The European Commission, the executive body of the European Union, insists that text messages and other "ephemeral" electronic communications are not necessarily documents of interest that should be preserved and disclosed to the public.
As stated in the decision of the General Court in Luxembourg, the lawyers of the reputable American newspaper "managed to rebut the presumption of the non-existence and non-possession of the requested documents."
The court wrote that the European Commission "cannot simply state that it does not possess the requested documents, but must provide credible explanations that would enable the public and the court to understand why those documents cannot be found."
It is alleged that the Commission failed to explain "in a convincing manner" why the exchanged text messages did not contain important information.
It also states that the Commission "has not sufficiently clarified whether the requested text messages have been deleted and, if so, whether the deletion was intentional or automatic or whether the President's (European Commission) mobile phone has been replaced in the meantime."
The European Commission said it would study the Luxembourg court's ruling and decide on "further steps", which could mean appealing to the European Court of Justice, the highest court of the European Union.
It is unknown whether the text messages still exist, and if so, who can access them.
Von der Leyen had the authority to decide whether these messages constituted documents of value.
Transparency campaigners argue that the increasingly powerful European Commission must leave behind a paper trail of all its dealings and must publish those documents upon request.
Shari Hinds, policy officer at the anti-corruption organization Transparency International, said that the General Court's decision "must serve as a catalyst for the Commission to finally change its restrictive stance on freedom of information."
University of Helsinki law professor Paivi Leino-Sandberg, who is taking the European Commission to court over its internal rules on document retention, described today's news as "a huge victory for transparency."
"The Commission has lost so comprehensively (with this decision) and on every possible ground, that the possibility of its reversal before the European Court of Justice does not seem even remotely likely," Leino-Sandberg assessed.
The New York Times claimed that text messages were exchanged between Von der Leyen and Pfizer chief Albert Burla at a time when Covid-19 was ravaging the European Union, which was struggling to procure billions of vaccine doses.
Von der Leyen has been under close public scrutiny, especially after AstraZeneca's difficulties in delivering ordered doses to the Union.
In the fierce international competition for access to anti-Covid vaccines, Von der Leyen has been praised for her leadership role in the fight against the pandemic, but has also come under heavy criticism for the secrecy of negotiations aimed at raising $2,7 billion to order more than a billion doses.
At the same time, while news circulated that she had exchanged messages directly with the head of Pfizer, Von der Leyen publicly praised the company as a "reliable partner."
Von der Leyen became Commission President for the second time last June, and her term will last five years. Critics say the 66-year-old former German defense minister does not like her decisions to be questioned and has centralized power in the Commission's headquarters in Brussels, where she lives when not in Germany.
"It is simply not true that the Commission President does not use text messages to conduct politics," said Daniel Freund, a leading anti-corruption MEP from the German Green Party, adding: "This decision is a clear defeat for Ursula von der Leyen and a clear rejection of her practice of hiding her text messages."
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