Could a new lawsuit blow open von der Leyen’s Pfizer texts?

Could a new lawsuit blow open von der Leyen’s Pfizer texts?
Опубликовано: Thursday, 09 March 2023 09:34
The EU Commission has dug in its heels, saying that text messages could never be considered documents subject to transparency (Photo: EU Commission)

When other routes had failed, John Kerry started typing. In November, the US envoy turned to diplomacy’s secret weapons — emails and texting — to save stalled UN climate talks COP27 at the Egyptian resort town Sharm el-Sheikh. Phone in hand, Kerry got in touch with his Chinese counterpart Xie Zhenhua. A meeting followed. Soon relations between the two great powers warmed, as the negotiators later recalled.

This is no lone example. The Guardian noted already back in 2016 the rise and rise of diplomacy by WhatsApp".

Messaging apps have become an inescapable fact of life for most of us — and a standard form of communication between top officials in governments across the globe.

It therefore comes as surprise that president of the European Commission, Ursula von der Leyen, claims that the EU’s freedom of information law does not cover her text messages.

This is all the more astounding as the commission boasts about their impressive results.

Early last year, when vaccines against Covid were still scarce, Von der Leyen told the New York Times that she personally clinched a deal over 1.8bn doses in calls and messages with the CEO of Pfizer, Albert Bourla.

Sceptics point out that, according to a leaked partial contract, the deal Von der Leyen negotiated with Pfizer raised the price per dose from an initial €15.50 per vaccine dose to €19.50. This amounts to billions in profit for the pharmaceutical company.

NGOs complain that the high cost of European vaccine purchases came at the expense of strained public healthcare workers and countries in the Global South.

So what did the EU Commission chief promise Pfizer? We might never know.

Most European countries have strong laws mandating the disclosure of official documents. These laws protect sensitive information such as state secrets or private addresses from public, but officials must justify withholding access in every case.

The European Union has even enshrined transparency in its Fundamental Rights Charter. Article 42 grants the public a right of access to EU documents — "whatever the medium". This right has been a recognised principle of good governance for decades.

Such transparency is necessary in the fight against government overreach and corruption. "Sunlight is said to be the best disinfectant", as US supreme court judge Louis Brandeis famously argued. The recent Qatargate scandal drove home the lesson that public scrutiny of how the EU makes decisions and spends money is no "nice to have", but essential.

But when I asked for the exchanges with the Pfizer CEO, the Commission replied text messages were "short-lived" and therefore did not qualify as document under the law.

This drew a sharp rebuke from the European Ombudsman, who in January 2022 found that EU institutions must systematically archive and give access to texts, the same as with e-mails or letters. The European Parliament, too, has demanded more information about how the EU’s billion-euro vaccine contracts came about.

But unfortunately the Ombudsman’s rulings are non-binding. Meanwhile, parliament has failed to compel Pfizer CEO Bourla to appear at the special Covid committee to testify.

The Commission has dug in its heels, saying that text messages could never be considered documents subject to transparency. Moreover, it asserts that only messages it has put in its official archive may be released under FOI law — an act of cherry-picking that could put a lot of official communication out of transparency’s reach.

With its intransigence, the Commission risks creating a legal black hole. If text messages are exempt from public scrutiny, they become the medium of choice for every illicit or odious purpose — from indecent proposals by authoritarian states to secret lobby deals between officials and the fossil fuel industry.

Texting — or any file sent by messenger apps — will become a dark channel for those who wish to avoid scrutiny. In effect, the European Union wants to ‘quiet quit’ on public access.

Strong action is needed. The New York Times has made a crucial intervention. Matina Stevis-Gridneff, the Times’ Brussels bureau chief, has filed a lawsuit at the European Court of Justice that could force the Commission to disclose the texts.

More is at stake than just a few messages. This lawsuit could change institutional practice for decades. Will transparency end at an official phone’s lock screen — or does the public have a right to know?

Crucial information needs to be captured — or it will come back to haunt us.