Ursula von der Leyen’s lips have been sealed for more than two years.
But that doesn’t make the question any less interesting: What exactly was in the text messages she reportedly exchanged with Pfizer CEO Albert Bourla in advance of the EU signing its biggest COVID vaccine contract with the company?
While the Commission president might wish the topic would go away, it matters — and not only because this brings up legitimate concerns about how the vaccine contract was negotiated, especially since the number of doses skyrocketed and the price per jab jumped by a reported 25 percent.
It also raises the issue of whether commissioners’ text messages are part of official communications, to be stored and accessed in the same way as other documents.
In early 2024, we will get an answer, with Europe’s highest court set to rule on a lawsuit brought by the New York Times against the European Commission for failing to provide access to the text messages.
“The public continues to be denied information about the terms of one of the biggest procurement contracts in the history of the EU,” said Nicole Taylor, a New York Times spokesperson. ”Public officials should not be able to avoid oversight by failing to preserve information, or by using alternate forms of communication to avoid disclosure,” she added.
The case raises tantalizing questions. Will we finally get to see the texts? What will it mean for commissioners’ private messages going forward? And how will this play out politically for von der Leyen, coming as it will just months before the European election?
Here are five things you need to know.
1. The New York Times has a good chance of winning
Chances of success for the New York Times are high, said Yoann Boubacir, a lawyer and expert in European law, pointing to a 2001 EU regulation that says EU citizens should have the right to access “any content whatever its medium (written on paper or stored in electronic form, sound, visual or audiovisual recording).” That could very well include texts.
The Commission originally denied access to the messages on the basis that there were no such documents in its database. But the institution seems “to have rather neglected the reasoning behind its decision” to not consider text messages as documents that could be kept and shared, said Boubacir.
Judges, who are from the General Court that is in charge of disputes over decisions involving the EU institutions, will also consider the legal principle of democracy. This is a basic tenet of EU law that encourages entities such as journalists, trade unions, the European Parliament and civil society bodies to participate in decision-making processes.
“Applying the principle of democracy … it is important that the media should have access to these documents,” said Vincent Couronne, a researcher in European law at the Versailles Public Institutions research center.
But it may not be such smooth sailing.
Judges will also consider the EU’s fundamental right to privacy, which may only be infringed “where there is interference provided for by law that is proportionate to the aim pursued and meets a pressing social need,” said Amélie Bellezza, head of business ethics and EU financial interests protection at the Lorraine law faculty in France.
The pressing need is clear, Bellezza said, given how vaccination as a response to the pandemic is in the public interest.
But proportionality might be trickier: Does that then mean the public should be allowed to access all of a politician’s private communications?
Judges are likely to adopt a more nuanced approach than a simple yes-or-no answer. “Perhaps the court will grant access to the texts, but only if it can be shown that the SMSes had an impact on the final decision,” said Couronne.
That’s because to guide the decision, judges will consider the intent of the law when it was first drafted — which is known as allowing a teleological interpretation. Keeping that in mind, it’s unlikely lawmakers would have sought a complete overhaul of privacy regulations.
2. But that doesn’t mean we’ll see the texts
The court is deciding on whether the Commission’s reason for refusing access to the New York Times is valid, and therefore if text messages should be considered documents that should be stored and remain accessible to citizens.
But even if the ruling overturns the Commission’s decision to refuse access, they could in theory be free to refuse access again — although they’d have to use a different justification.
Whether the texts will ever see the light of day would also depend on whether there are technical and legal means to retrieve them. The hypothesis of a “seizure” from the police remains unlikely under European law; however, Belgian criminal law could eventually justify such a measure, Boubacir added.
But in the end, although an EU directive allows telecom operators to store certain metadata related to texts for the purpose of investigations, provisions aimed at protecting citizens’ privacy would weaken the chances of ever seeing the content of the texts themselves.
But there’s also a more existential problem — do the messages still exist?
“In such a case, no one is bound to the impossible, and the Commission could escape the consequences of annulment,” said Boubacir.
3. Timing could be everything … or not
The ECJ ruling is expected in early 2024, right as the European election campaign gets into full swing. It could come at a high political cost for von der Leyen, who may be seeking another five-year term as Commission president — or a different high-profile job.
Whichever way the decision goes, it will bring unwanted attention to the EU chief’s methods. It will also open the Commission up to accusations of not being transparent — not a good look following the European Parliament’s Qatargate cash-for-influence scandal.
But if the Commission loses, it would have at least two months to appeal. And it typically takes at least nine months for the ECJ to come out with a new ruling — which could kick the can to 2025.
4. It could change the way EU officials treat text messages
At the core of the case is whether citizens should have access to documents that are central to decisions — ephemeral digital messages included — and in that regard, the ruling could set a precedent on transparency matters within the EU.
“The Court of Justice will be called upon to clarify the notion of what is considered a document that citizens are allowed to request access to,” said Bellezza.
Couronne said a positive decision would likely spur lawmakers toward provisions to protect high-level EU politicians (and themselves) from giving full access to their texts. “If we were to consider that text messages are communicable, then all those sent by commissioners, and why not administrators and [members of European Parliament], could be, to some extent, communicable.”
That could be subject to “a battle that could last for years,” added Bellezza, who said such kinds of legal cases on privacy have in the past been among some of the most convoluted.
5. Even if the Commission wins, von der Leyen isn’t out of the legal woods
Beyond the New York Times decision, three other cases related to the EU’s vaccine contracts are still pending.
The European Public Prosecutor’s Office — the role of which is to investigate, prosecute and bring to judgment “crimes against the financial interests of the EU” — has an open investigation into the EU’s vaccine purchases, details of which have not been made public. An EPPO official said prosecutors are hoping to wrap up the case by the end of this year.
Belgian lobbyist Frédéric Baldan filed a criminal complaint in Belgium against von der Leyen in April, which includes charges of corruption and destruction of documents. The lawyer who represents him, Diane Protat, also represents a vaccine-skeptic French organization called BonSens, which has previously lobbied against the COVID-19 response.
BonSens announced it has also launched legal action in the United States and in France; in the U.S. to obtain the text messages and in France to nullify the COVID-19 vaccine contracts between the EU and Pfizer.
So despite sealed lips, it looks like questions around vaccine negotiations won’t be going away any time soon.