EU watchdog raps Commission over von der Leyen’s texts with Pfizer boss

Failure to look for messages amounted to 'maladministration,' ombudsman says.

EU watchdog raps Commission over von der Leyen’s texts with Pfizer boss

An EU watchdog has criticized the European Commission for failing to search for text messages between its president, Ursula von der Leyen, and the CEO of pharmaceutical giant Pfizer, Albert Bourla.

The messages were requested by journalist Alexander Fanta of news site netzpolitik.org after they were mentioned in a New York Times article last April about the EU’s coronavirus vaccine procurement efforts.

An inquiry by European Ombudsman Emily O’Reilly found that the Commission had not asked von der Leyen’s office to search for text messages, despite Fanta specifically requesting them. Instead, it asked for items that meet the Commission’s criteria for recording “documents” — a definition that does not include text messages.

O’Reilly, whose job is to hold EU institutions to account, said the Commission’s handling of the request amounted to “maladministration.”

“The narrow way in which this public access request was treated meant that no attempt was made to identify if any text messages existed,” she said in a statement. “This falls short of reasonable expectations of transparency and administrative standards in the Commission.”

The case has highlighted a growing debate over how EU institutions handle officials’ text messages — in particular when the texts include information on key policy decisions.

The New York Times article noted that the Commission chief was “exchanging texts and calls” with Bourla for a month and that “personal diplomacy played a big role” in a deal to purchase 1.8 billion doses of vaccine. But in response to Fanta’s request, the Commission said it did not hold documents beyond an email, a letter and a press release on the subject. 

During the ombudsman’s inquiry, the Commission argued that a “text message or another type of instant messaging is by its nature a short-lived document which does not contain in principle important information concerning matters relating to policies, activities and decisions of the Commission” and that “the Commission record-keeping policy would in principle exclude instant messaging.” 

The Commission also told the ombudsman’s team that “to date, it has not recorded any text messages in its document management system.” 

O’Reilly, however, rejected the Commission’s argument, noting that the EU’s law on public access to documents states that the definition of a document is “any content whatever its medium … concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility.” 

O’Reilly — who is also in the midst of a broader examination of how institutions handle text and instant messages — said that “not all text messages need to be recorded, but text messages clearly do fall under the EU transparency law and so relevant text messages should be recorded. It is not credible to claim otherwise.”  

“When it comes to the right of public access to EU documents, it is the content of the document that matters and not the device or form,” she said. “If text messages concern EU policies and decisions, they should be treated as EU documents.” 

The ombudsman has now recommended that the Commission ask von der Leyen’s personal office to search for relevant text messages, and if texts are identified, assess whether to grant access to them under the public access to documents regulation.

A Commission spokesperson said: “The Commission has taken note of the European Ombudsman’s recommendation. The Commission will respond to the European Ombudsman within the deadline set by her, i.e. 26 April 2022.”

Fanta, the journalist who complained to the ombudsman about the Commission’s handling of his request, said he will continue to pursue the matter.

If the Commission refuses to reconsider his case, Fanta said, he will “look hard” at the option of bringing the case to court.