The procurement of COVID-19 vaccines by the European Union during the height of the pandemic was a monumental undertaking, marked by urgency, high stakes, and a drive for equitable distribution. A New York Times article in April 2021 sparked controversy by revealing that the deal securing millions of Pfizer vaccine doses involved direct mobile phone negotiations between Pfizer CEO Albert Bourla and European Commission President Ursula von der Leyen. This revelation raised questions about transparency and access to information concerning these crucial deals. The article highlighted the speed and efficiency of the EU’s centralized vaccine procurement strategy, contrasting it with what potentially could have been a chaotic scramble among individual member states. With the virus raging across Europe and the world, causing immense suffering and economic disruption, securing vaccines quickly was paramount. The EU Commission took the lead, negotiating and purchasing vaccines on behalf of all 27 member states, a strategy aimed at preventing inequitable distribution and ensuring solidarity within the bloc. The approach also allowed the EU to leverage its collective bargaining power, securing potentially better prices and faster delivery through advance purchase agreements.
The EU’s centralized approach was applauded by many for preventing a vaccine free-for-all where richer countries might have outbid smaller ones, exacerbating existing inequalities. Von der Leyen herself celebrated the coordinated rollout of vaccines across the EU in late 2020, emphasizing the shared effort and success in securing doses for all member states simultaneously. By mid-2021, the EU achieved significant vaccination coverage, with 70% of adults receiving at least one dose, further bolstering the perceived success of the Commission’s strategy. However, the New York Times article and its revelation of back-channel communication between von der Leyen and Bourla cast a shadow over this achievement, raising concerns about transparency and accountability. The revelation piqued the interest of Alexander Fanta, an Austrian investigative journalist known for his work on digital rights and transparency. He recognized the growing significance of digital communication in political decision-making and the potential implications for public access to information.
Fanta, having previously been denied access to text messages related to other EU decisions, saw the New York Times article as confirmation that such communication existed and was potentially relevant to public understanding of the vaccine deals. He promptly filed a request for the release of the text messages exchanged between von der Leyen and Bourla, but was met with resistance from the Commission. This refusal sparked a legal battle that continued for years, eventually landing in the EU General Court. The Commission’s repeated denials and claims of non-existence of the text messages were countered by Fanta, who argued that the New York Times report clearly indicated otherwise. This discrepancy highlighted the growing tension between the increasing use of private communication channels by officials and the public’s right to access information about government decision-making.
The case became a test of the EU’s transparency regulations and the extent to which digital communications are considered public records. Fanta’s initial request was rejected, prompting him to appeal to the EU Ombudsman, Emily O’Reilly, who subsequently criticized the Commission’s handling of the request. O’Reilly’s findings, while not legally binding, added pressure on the Commission to address the issue of transparency. The New York Times, also pursuing the release of the messages, took the Commission to the EU General Court, further escalating the legal battle. The court hearings finally took place in November 2023, with Commission officials admitting that text messages had indeed existed but claiming they contained only trivial scheduling details and were no longer retrievable. This admission, coupled with the insistence that the content was unimportant despite the officials never having reviewed it, was met with skepticism by the judges, one of whom described the Commission’s handling of the situation as ”bizarre.”
The central issue before the court became whether these text messages, even if seemingly mundane, constituted official documents subject to public access under EU law. The New York Times argued that the very act of using private communication channels to discuss matters of public importance circumvented established transparency procedures and undermined the public’s right to know. The case raised fundamental questions about the evolving nature of official communication in the digital age and the need for updated regulations to ensure transparency. The core argument presented by the New York Times was that the lack of documentation and archiving of these communications, regardless of their perceived importance, created a loophole that could be exploited to shield crucial information from public scrutiny. The Commission’s defense, resting on the assertion that the messages were insignificant and therefore not retained, was perceived as weak and potentially setting a dangerous precedent.
The eventual ruling by the EU General Court is eagerly awaited as it has the potential to significantly impact transparency practices within EU institutions. While the actual text messages may be lost forever, a ruling in favor of the New York Times could set a precedent, making it more difficult for officials to deny access to digital communications in the future. This case highlights the broader challenges posed by the increasing use of private messaging platforms in official business and the need for clear guidelines on record-keeping and transparency. While von der Leyen may be remembered for her decisive action in securing vaccines for EU citizens, the controversy surrounding the Pfizer deal and the missing text messages risks tarnishing her legacy. The case serves as a reminder that transparency and accountability are crucial components of public trust, even in times of crisis. It also underscores the need for continuous adaptation of transparency regulations to keep pace with evolving communication technologies and to ensure that the public’s right to information is upheld.
