The European Court of Justice (ECJ) has annulled a European Commission decision that denied The New York Times access to text messages exchanged between Commission President Ursula von der Leyen and Pfizer CEO Albert Bourla, finding that the EU executive failed to provide a credible explanation for not possessing the records.
In a ruling published on Tuesday, the EU’s top court determined that the Commission “has not given a plausible explanation to justify the non-possession of the requested documents,” in reference to the alleged text exchanges related to COVID-19 vaccine procurement. The judgement marks a significant development in a longstanding transparency dispute that began in 2021.
The case centres on a series of messages reportedly exchanged at the height of the pandemic in early 2021, as the EU sought to secure a large-scale vaccine contract with the pharmaceutical company. The New York Times first uncovered the existence of the messages during interviews with Bourla and subsequently submitted a formal request for access to the texts under EU transparency rules.
The Commission maintained that it was unable to provide the texts because it did not retain them. However, the ECJ rejected this position, stating that the Commission “cannot simply claim” that it does not hold the documents in question. The Court emphasised that EU institutions are required to provide “credible and verifiable explanations” for the non-availability of requested records, particularly in cases involving official communications at the highest level.
In its ruling, the Court found that The New York Times had submitted “relevant and consistent evidence” indicating that such text messages between von der Leyen and Bourla had in fact existed. The Commission’s explanation that it could not locate the messages was found insufficient and lacking in transparency. The judgement underscores the principle that EU institutions must be able to demonstrate how records are handled and, where applicable, explain the conditions under which they may have been deleted—either automatically or deliberately.
The ECJ also noted that the Commission had not clarified whether any measures were taken to preserve or retrieve the texts. This omission, according to the Court, runs counter to the legal obligations imposed by EU transparency law, which applies to all forms of communication that concern official matters, irrespective of the medium used.
The legal challenge was formally launched in January 2023 after multiple failed attempts by The New York Times to obtain access to the messages through administrative procedures. The Commission’s refusal was contested on the grounds that the information pertained to the negotiation of vaccine contracts with significant financial and public health implications for the European Union.
“These contracts were totally unprecedented in a totally unprecedented context,” said an EU official ahead of the ruling, referring to the extraordinary conditions under which vaccine deals were secured during the early phase of the pandemic. However, the Court’s judgement suggests that the exceptional nature of the circumstances does not exempt the Commission from complying with transparency and accountability obligations.
The ruling has potential implications for how EU institutions manage digital correspondence, especially high-level exchanges conducted over informal platforms such as SMS or instant messaging applications. While the Commission has previously argued that not all such messages constitute “documents” under EU access-to-information rules, the Court reaffirmed that any content related to the institution’s policies or decision-making may fall within the scope of public access.
The European Commission now has two months to decide whether it will appeal the judgement to the Court of Justice’s Grand Chamber. A Commission spokesperson said the institution was studying the ruling and would respond in due course.
The decision arrives amid broader scrutiny of how EU institutions handle transparency and record-keeping in an increasingly digital communications environment. Civil society organisations have long raised concerns that the use of informal channels by senior officials risks undermining the integrity of public access to EU decision-making.
The ECJ’s judgment sets a precedent that could influence future access-to-information cases, particularly those involving top-level officials and digital communications. It also signals that EU bodies may face heightened legal expectations in justifying the absence of records that are likely to exist and that pertain to matters of significant public interest.
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