Text Messages, Transparency, and the Rule of Law

On 14 May 2025, the General Court of the EU ruled in favour of The New York Times in the much-awaited Pfizergate case, annulling the European Commission’s decision to withhold the SMS text messages presumed to have been exchanged between EU Commission President von der Leyen and Pfizer CEO Albert Bourla.

While presented as another case concerning document access, potentially illuminating the informal negotiation process behind COVID-19 vaccine contracts and the management and archive of texts and other instant messages, this judgment largely defies this expectation. Despite offering a rare opportunity to provide a modern interpretation of the 25-year-old Regulation 1041/2001 to reflect contemporary communication practices (including ephemeral digital exchanges) and the post-Lisbon constitutional framework (requiring greater legislative transparency), the Court avoided addressing the New York Times’ arguments through this regulatory lens. Instead, invoking judicial economy, the Court based its decision exclusively on the Charter of Fundamental Rights – specifically Article 41 (the right to good administration) – rather than on the procedural obligations outlined in the Regulation, as the complainants had argued.

This can plausibly be interpreted as a major rebuke of the Commission’s conduct. As such, the judgment may go down in history as the first ruling holding an EU Commission President and her administration directly accountable to 450 million citizens. It also stands as a powerful demonstration of how the “rule of law” is upheld by an independent court upon the demand of a well-functioning media system. However, by avoiding an explicit determination of the institution’s legal obligations in terms of records management and archives in relation to SMS-text and other ephemeral digital contents, the judgment proved little prescriptive regarding the Commission’s obligation to rectify its violation of the good administration principle, and its corollary, that of institutional accountability. This, in turn, risks confining the ruling’s practical effects pro futuro, by largely leaving the EU Commission and its President off the hook regarding past – and potentially future – conduct.

The genesis

The genesis of this case stems from the negotiation of multi-billion euro COVID-19 vaccine contracts between the European Commission and pharmaceutical companies, particularly Pfizer. Reports emerged suggesting that crucial communication during these negotiations, specifically between European Commission President Ursula von der Leyen and Pfizer CEO Albert Bourla, took place via text messages (the NYT reported “For a month, Ms. von der Leyen had been exchanging texts and calls with (…) the chief executive (…)”). Investigative reporters, such as Alexander Fanta, became interested in these exchanges, recognizing their potential to offer important insights into how these controversial, multi-billion euro deals were made on behalf of EU citizens during a public health emergency. One such request was made by Matina Stevi, a journalist employed by The New York Times, on 11 May 2022. However, the European Commission refused these requests by stating that it did not hold the requested documents and claimed they were not archived. They also argued that they lacked substantive content or were “short-lived”. They noted that according to their internal rules (Commission Decision 2021/2121 on records management and archives), documents are only registered if they contain important, non-short-lived information or involve action or follow-up – a rather questionable practice (due to the selective and largely unaccountable nature of these self-imposed rules) when examined against the principle of good administration, and, more specifically, that of institutional accountability. Following the Commission’s refusal decision of 15 November 2022, the NYT company and Matina Stevi, who had previously reported on the personal diplomacy between von der Leyen and Bourla, filed a lawsuit with the General Court. The applicants sought the annulment of the Commission’s contested decision to refuse access to the text messages. This legal action aimed to challenge the Commission’s stance and uncover the messages, driven by a broader principle of transparency and accountability regarding the actions of high-ranking officials, especially concerning digital communications. The case, sometimes referred to as “Pfizergate”, became a high-profile challenge to the Commission’s transparency standards.

Court findings

The General Court dismissed virtually all arguments invoked by the European Commission, starting from those relating to the admissibility of the complainants’ legal action. It rejected the Commission’s arguments challenging the standing of the NYT company’s legal action (finding the action admissible based on Ms. Stevi’s standing); its contention that interview transcripts submitted late by the applicants were inadmissible (finding the delay justified in the circumstances); and its claim that the applicants’ argument regarding the rebuttal of the presumption of veracity was a new, inadmissible plea introduced late.

The same is true when it comes to the merits of the case.

Presumption of non-existence

The Court first recalled that all documents of the institutions should be accessible by default to the public, and then offered a standard application of the Dehousse line of interpretation of the Access to Documents Regulation. Under such an established case-law, when an EU institution – such as the Commission in the present circumstances – claims that a document does not exist, that statement is presumed to be truthful. However, this presumption can be overturned if the applicant provides sufficiently credible and consistent evidence. The Court found that the applicants had done exactly that – citing press reports and public statements that convincingly demonstrated the likelihood that the text messages did exist. As a result, the Court concluded “the applicants have succeeded in rebutting the presumption of non-existence and, consequently … of non-possession of the requested documents” (para 58).

Failure to provide plausible explanation

Once the court had accepted the plausibility of the text messages’ existence, the legal burden shifted to the Commission to explain why the documents could not be found. From that point onwards, the Commission was required to provide specific, verifiable details about its search efforts, which would enable both the public and the Court to understand why the texts could not be located. Instead, the Commission merely stated that a “renewed, thorough search” had been conducted. However, it failed to explain the scope, method, or results of this search. It did not clarify whether the relevant phones had been examined, whether deletion occurred, or whether backup systems were consulted. The Court found this response wholly inadequate and lacking in transparency. It ruled: “the explanations given by the Commission … do not suffice to provide a credible explanation of why those documents could not be found” (para 68).

Lack of record-keeping and registration

The Commission claimed it did not hold the requested text messages because, under its internal rules, only documents containing “important” and “non-short-lived” information are registered and preserved. On that basis, it argued that the messages did not meet the threshold for retention. However, the Court found that the Commission failed to explain why it considered text messages concerning COVID-19 vaccine negotiations – a matter of public interest and political significance – as not sufficiently important to warrant registration. Ultimately, it failed to provide any rationale for why these exchanges were excluded from the record-keeping system.

The Court firmly rejected the Commission’s reasoning, concluding that such texts clearly related to high-level decision-making and – as such – should have been registered and retained: “the Commission cannot rely solely on the absence of registration in its system for managing the requested documents to establish that it did not hold those documents, without any other explanation” (para 83).

A pyrrhic victory for EU accountability in relation to its leaders’ ephemeral exchanges?

In response to the ruling, the Commission stated – in line with Article 266 TFEU (requiring institutions “to take the necessary measures to comply with the judgment of the Court of Justice”) – that it would “now closely study the General Court’s decision and decide on next steps. To this effect, the Commission will adopt a new decision providing a more detailed explanation.” Yet one may reasonably question whether, how, and by whom this judgment will be rendered enforceable on the EU Commission, after the latter has been systematically declaring that the SMS messages either do not exist or are not in its possession – and the fact that it has, thus far, faced no real consequences for this position. And that despite the request by the EU Court of Auditors and recommendation of the EU Ombudsman. Indeed, as highlighted by the General Court – based on the complaints’ observations –, the Commission has to date “not provided (to the EU Court of Auditors in the framework of the special report on the procurement of vaccine) any information on the preliminary negotiations for the abovementioned contracts, such as the timing of the talks, the records of the discussions and the details of the terms and conditions agreed” (para 55). Likewise, the Commission also failed to follow the EU Ombudsman’s recommendation “to search again for relevant text messages, making it clear that the search should not be limited to registered documents or documents that fulfil its recording criteria” upon Alexander Fanta’s complaint as well as the recommendations stemming from the Ombudsman’s strategic initiative on texts and instant messages’ registration.

In these circumstances (and assuming this judgment will likely not be appealed), the most probable segue of this judgment will not be a disclosure of information to the complainants (ultimately, what information will Matina Stevis eventually get from the Commission?), but a revision and reorganization of its internal working methods covering not only the EC staff but also the Members of the Commission, not to mention those in use across all EU institutions, bodies and agencies of the Union. Albeit indirectly, this judgment put into question the legality of the entire EU Commission’s policy and practice of records management and archives – that is, Decision 2021/2121 on records management and archives – in light of the principle of good administration, and its corollary of institutional accountability. Under Article 15.1 of Regulation 1049/01 (administrative practice in the institutions), “the institutions shall develop good administrative practices in order to facilitate the exercise of the right of access guaranteed by this Regulation”. Yet, as rhetorically asked by Emilio de Capitani, will the interinstitutional committee – foreseen by the same provision (but never convened) – discuss the impact of this ruling? This appears unlikely despite this obligation having been further strengthened over time by Article 41 of the Charter (right to good administration) and the Lisbon Treaty (e.g. Article 298 TFEU on the implementation of the principle of good administration).

From this perspective, the enthusiasm generated by this judgment appears to be tempered by its limited judicial impact, which is not only largely confined to the future, but also contingent on the political will of the same institutions and their leaders. To illustrate the limited political desire for reform, it is worth noting that the EU Commission has not only decided to withdraw the revision of Regulation 1049/01 – amended by the EU Parliament on 15 December 2011 in light of the Lisbon Treaty –, but that the EU Parliament has also recently accepted this withdrawal.

With the exchange of ephemeral digital content becoming the “bread and butter” of EU political leaders’ daily communications – at a time of unprecedented cyber security attacks and foreign influence efforts –, will the EU administration ban this medium, limit its use to “unimportant” issues, or proactively upgrade its policy on the use and archiving of these tools?

In line with the Security Union Strategy, the European Commission recently proposed the creation of a minimum set of rules on information security across all Union institutions and bodies, which will trigger mandatory and high common standards for the secure exchange of information. This initiative, which builds upon the outdated Access to Documents Regulation, represents the engagement of the institutions and bodies to set within the European administration the same level of ambition in the field of security as required from the Member States.

Regardless of whether this proposal is adopted or other reforms are enacted, the principle of good administration requires EU institutions, bodies and agencies to guarantee the security of the information they handle and store on a daily basis when dealing with European citizens’ affairs. This is precisely what the EU Ombudsman recalled all EU institutions to do when she concluded, in her strategic initiative on texts and instant messages, that: “whether to record or not a certain piece of information in the administration’s document management system should not be dependent on the medium − be it a letter, an email, a text or instant message − but on its content”.

As such, the judgment in the case of the NYT vs the Commission comes as a timely reminder to all EU institutions of the urgent need to not only align their Access to Documents Regulation to the modern electronic communication used in their daily work, but also to urgently develop adequate record-keeping rules and practices with regard to these methods of communication within the EU administration.

Ultimately, the enforcement of this judgment, with regard to both past and future conduct, remains in the hands of EU leaders, who are influenced by the dominant political culture across the Union and the public scrutiny exercised by civil society and broader public discourse.

The fight for institutional accountability is set to continue alongside the Union’s rapid expansion of its influence over its citizens, as this has not yet been matched by an equivalent increase in democratic opportunities.