Alexander Fanta is a Brussels-based journalist who covers EU digital policy for netzpolitik.org.
In the spring of 2021, European Commission President Ursula von der Leyen was in a pickle.
AstraZeneca, a leading manufacturer of COVID-19 vaccines, was not delivering the quantities promised, and the Commission was under heavy fire for failing to make their advance purchase agreements legally airtight, so as to prevent the company from prioritizing other countries — chiefly the United Kingdom. So, in a bid to secure a new vaccine supply, von der Leyen took to a tool of essential importance at the highest level of politics — her smartphone.
In calls and texts with Pfizer CEO Albert Bourla, von der Leyen managed to negotiate 1.8 billion additional doses, and through her personal diplomacy, millions of Europeans gained access to the shot. But soon, the European Union executive found itself under renewed scrutiny over the terms of the deal. And the ongoing bureaucratic saga that has plagued any attempt to access these messages — including my own — spell trouble for EU transparency and freedom of information.
At the time, the Commission published redacted versions of the advance purchase agreement and contract, which lacked information about pricing, delivery, payment, clinical trials of the vaccine, liability and dispute settlement. Soon after, however, an unredacted partial contract seen by the Financial Times suggested that von der Leyen had agreed to a price of €19.50 per dose — a hefty jump from the €15.50 the EU had paid for the initial vaccines delivered in late December 2020.
Along those lines, campaign group Public Citizen — which has reviewed unredacted Pfizer vaccine contracts in several countries outside Europe — reported that Pfizer used its bargaining power as one of the few manufacturers of an effective COVID-19 vaccine to “shift risk and maximize profits.” And contracts seen by the group “consistently place Pfizer’s interests before public health imperatives.”
In an attempt to shed light on the deal, in May 2021, I made a freedom of information (FOI) request for von der Leyen’s text messages with Pfizer. Though it might seem fanciful to ask for the personal communication of the Commission chief, I figured the law was on my side: The EU Charter of Fundamental Rights grants a right of access to EU documents, “whatever the medium” — which means texts are clearly included.
From the start, however, the Commission stonewalled. At first, they tried to creatively reinterpret the request, sending me a letter and a press release in response. When I still insisted on seeing the texts, the EU bureaucracy said their “record-keeping policy would in principle exclude instant messaging.” Indeed, the Commission has never, ever archived a single text message.
I was nonplussed.
For years, Brussels journalists have written stories about the crucial role of text messaging in EU politics. According to reports, the Greek bailout deal in 2015 was rescued by “a single text message” from Dutch Prime Minister Mark Rutte to Council President Donald Tusk, and former German Chancellor Angela Merkel kept close contact both with then Commission President Jean-Claude Juncker and his successor, Ursula von der Leyen, via text. Insiders also say entire working groups in the Council of the European Union coordinate via WhatsApp, and that during the pandemic, law-making moved almost completely to group chats.
So, how can there be no text messages on file?
Senior figures, such as Commissioner for Values and Transparency Věra Jourová, have offered only the vague suggestion that text messages, being “short-lived and ephemeral,” don’t qualify to be archived. But how can a text that rescues a massive bailout deal, or arranges a billion-euro vaccine purchase, be considered ephemeral?
It’s only von der Leyen’s marked reluctance to face the Brussels press corps in any open Q&A session that has saved her from having to answer this very question.
Regarding my complaint, European Ombudsman Emily O’Reilly has said, unequivocally, that the Commission’s refusal to properly consider the request constitutes “maladministration.”
But still, the EU administration won’t budge, even though the categorical refusal to give access to texts stands in stark contrast to its own transparency rules. Von der Leyen herself stated in her Political Guidelines that if “Europeans are to have faith in our Union, its institutions should be open and beyond reproach on ethics, transparency and integrity.” The Commission has also told the European Parliament it is committed to “maximum transparency regarding the COVID-19 vaccines.”
And yet, it continues to fight transparency at every turn. In April, Commission lawyers won against a German tabloid journalist who sought access to meeting minutes, legal advice and other documents related to COVID-19 vaccines. The court found that the Commission’s desire for secrecy overrode the public interest in the matter. And in a response to the Ombudsman published yesterday, the Commission continued to hold its line.
Transparency campaigners and members of the European Parliament are aghast at the implications of all this. By exempting a whole category of content from FOI legislation, the European institutions are creating a massive loophole. And a no-disclosure form of communication will be duly exploited by the likes of fossil fuel lobbyists, arms traders and governments in Europe and beyond, all who want to keep their dealings with the EU a secret.
If Europeans want to keep access to documents as a fundamental right, they will need to push the Commission hard to backdown. Otherwise, transparency as we know it will be a thing of the past.