The European Court of Justice has dismissed the European Commission's rejection of a New York Times' request to access text messages between its President Ursula von der Leyen and Pfizer CEO Albert Bourla on the purchase of billions of euro of Covid-19 vaccines.
The New York Times said the messages between 1 January 2021 and 11 May 2022 at the height of the pandemic could shed light on the billion-euro vaccine deals.
The commission had turned down its request, saying Ms von der Leyen had not kept the messages.
That prompted the newspaper's lawsuit against the EU executive.
In an interview with the newspaper in April 2021, Mr Bourla described how he had developed a trusting relationship with Ms von der Leyen during intense negotiations to provide the European Union with 1.9 billion doses of the Pfizer-Biontech Covid vaccine.
He described how they had shared WhatsApp messages in the final stages of the deal.
However, when the paper sought to access the messages, the European Commission refused to both acknowledge their existence and then to release their contents.
The New York Times took the commission president to the European Court of Justice for allegedly breaching the EU's transparency rules.
The commission has argued that Europe's vaccine contracts were negotiated with the support of member states, with a team of seven countries working with commission officials around the clock to secure desperately needed vaccine doses.
In a statement, the General Court of the ECJ said an EU transparency law was designed to give the fullest possible effect to the right of public access to documents held by EU institutions.
The court accepted that if an EU institution had stated that certain documents did not exist there was a "presumption of veracity" to such a statement.
However, the court held that the New York Times and its then Brussels bureau chief Matina Stevis-Gridneff had produced "relevant and consistent" evidence describing the existence of text messages between Mr Boula and President von der Leyen.
"In such a situation, the commission cannot merely state that it does not hold the requested documents but must provide credible explanations enabling the public and the court to understand why those documents cannot be found," the statement said.
The court held that the commission had not explained in detail the type of searches carried out to find the relevant documents or to identify where such searches had taken place.
As such, the commission had not given a "plausible explanation to justify the non-possession of the requested documents."
The court also held that the commission had not sufficiently clarified whether the requested text messages were deleted and, if so, whether the deletion was done deliberately or automatically, or whether the president's mobile phone had been replaced in the meantime.
The commission had also failed to explain "in a plausible manner" why it considered that the text messages exchanged in the context of the procurement of Covid-19 vaccines did not contain important information.
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Former EU ombudsman Emily O'Reilly said the ECJ ruling is "very significant." 1
Speaking on RTÉ's News at One, she said the case has been "hanging over" Ms von der Leyen and the commission for "many years, has done some damage to it [Commission], but I imagine they will be relying on the chaos of the world at the moment for some sort of cover."
Ms O'Reilly said the commission's reaction to the ruling seems to suggest it does not intend to say "whether they were texts, what happened to them and what was in them.
"It seems as if they may be continuing to stonewall by explaining why they don't hold them [texts]".
She said the issue is not Ms von der Leyen as commission president trying to secure as many doses of the Pfizer Covid vaccine as possible, but the issue is "there appeared to have been business in relation to huge volumes of vaccine conducted through personal diplomacy," as described by the New York Times, between the heads of the company and the commission.
"Most people would consider that it was reasonable of the New York Times or any other media organisation or anybody to say, well what was in those texts.
"So it's the issue of what was in the texts and whether they should have been releasable...and transparency, the rule of law, all those things the EU holds up to the rest of the world as being champions of.
"And not whether she was right or wrong to go and try to do a deal at a time of incredible stress and tension [pandemic] for so many people around the world.
"I and many people think she was absolutely right to do it, but that's not the point of this court case," Ms O'Reilly added.
