BRUSSELS (AN) — The European Union's second-highest court ruled the European Commission illegally withheld key details of COVID-19 vaccine contracts worth billions, dealing a blow to Commission President Ursula von der Leyen on the eve of a crucial vote on her bid for a second term.
The European General Court, a constituent of the Luxembourg-based Court of Justice of the European Union, on Wednesday ordered the release of redacted information from vaccine agreements signed with Pfizer, Moderna, AstraZeneca and other drugmakers in 2020 and 2021. These deals, worth about US$2.7 billion, secured over a billion doses for the bloc at the apex of the pandemic.
The ruling requires that the commission, as the E.U.'s politically independent executive arm, disclose the indemnity clauses protecting drugmakers from liability for defective or harmful vaccines, as well as the identities of officials who negotiated the contracts.
The court's ruling "annuls the commission's decision" to withhold this information, stating that "the commission did not give the public sufficiently wide access to the purchase agreements for COVID-19 vaccines."
The lawsuit, filed by Green MEPs in October 2021, came after months of unsuccessful efforts by lawmakers to obtain contract details from the commission. The court's decision addresses the heavily redacted contracts that the commission eventually released in 2022 amid mounting pressure from European Parliament members, journalists and the public.
On concealing E.U. negotiators' identities, the court found that plaintiffs "had duly demonstrated the specific purpose of the public interest in the disclosure of the personal data of the members of that team," adding that transparency was necessary to identify potential conflicts of interest.
“It was only by having the names, surnames and details of the professional or institutional role of the members of the team in question that they could have ascertained whether or not the members of that team had a conflict of interests,” the court said.
The ruling also rejected the commission's justification for withholding details of indemnity clauses, which shield drugmakers if their vaccines proved ineffective or harmful, finding that the commission “did not demonstrate that wider access to those clauses would actually undermine the commercial interests” of those companies.
The court’s decision comes as the European Parliament prepares for a vote at its secondary headquarters in Strasbourg, France on Thursday about von der Leyen's nomination for a second five-year term as the E.U.’s top official. Support from the Green bloc, whose members filed the lawsuit, is crucial in what is expected to be a close vote.
Tilly Mets, one of the Green MEPs behind the lawsuit, hailed the decision as "significant for the future" given E.U. plans for expanding joint procurements in the health and defense sectors.
"The court has confirmed the importance of proper justifications for protecting commercial interests," Mets said. "The commission's automatism of claiming confidentiality for just about everything relevant in contracts has been rejected."
“Such claims can and should only be made where it can be shown that public access could genuinely and specifically damage those commercial interests,” she added.
Lack of vaccine transparency looms over von der Leyen’s COVID-19 legacy
The Commission has approximately two months to appeal the ruling. In a statement, the E.U. executive branch said it would "carefully study the court's judgements and their implications," while reserving its "legal options."
The statement defended the commission's approach, citing the need to "strike a difficult balance between the right of the public, including MEPs, to information, and the legal requirements emanating from the COVID-19 contracts themselves, which could result in claims for damages at the cost of taxpayers' money."
Von der Leyen cites her handling of the pandemic as a cornerstone of her presidency. She won early praise for securing quick vaccine deals, but persistent secrecy over commission contracts with major pharmaceutical firms has shadowed her term.
Public scrutiny of the deals intensified after Pfizer CEO Albert Bourla told The New York Times in April 2021 about a month-long text exchange with von der Leyen before procurement deals were struck. The commission subsequently awarded its biggest vaccine contract to Pfizer while also making deals other major drugmakers such as AstraZeneca, Sanofi, GSK, Johnson & Johnson, and Moderna.
Calls for the release of von der Leyen's texts with Bourla have been met with claims by commission officials that the text messages were deleted. The New York Times has since sued the commission over its failure to disclose the communications.
“We chose to take that [legal] route because we believe in the public’s right to know all the inputs into what’s probably the biggest single procurement deal in the European Union’s history, which remains secret,” Matina Stevis-Gridneff, the outgoing New York Times' Brussels bureau chief who revealed the existence of the text messages and is part of the lawsuit, told EU Scream, a politics podcast, in June.
"This is a very unusual situation for the European Commission,” she added. “This shouldn't be unusual, this should be a very banal situation where a news organization is using its access to the courts to help the public exercise its right to know.”
Emily O'Reilly, the European Union's ombudsman, has also sharply criticized the commission's handling of the matter. In an interview with Reuters last year, she said the institution had "stonewalled" her efforts to obtain the text exchange.
O'Reilly's role as an independent watchdog allows her to investigate complaints about the E.U.'s administration, but lacks the authority to compel document releases. Commission officials have argued that text messages fall outside the scope of official E.U. documents subject to freedom of information requests.
"We need to hear what went on," O'Reilly said. "It's the gift that keeps on giving to people who are hostile to the E.U. and who are anti-vax, because it can feed into the narrative that something is being hidden."
