Landmark court ruling against von der Leyen in Pfizergate trial

EU Court of Justice annuls the European Commission’s decision to refuse to disclose the text messages between von der Leyen and Pfizer CEO Albert Bourla

This is a slightly longer version of an article originally published in UnHerd.

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EU Commission President Ursula von der Leyen, and the institution she represents, have just suffered the first legal setback in the ongoing “Pfizergate” scandal.

Earlier today, the EU’s General Court, part of the EU Court of Justice, the highest court in the bloc, annulled the European Commission’s decision to deny the New York Times access to text messages between von der Leyen and Pfizer CEO Albert Bourla, in which the Commission President single-handedly negotiated the purchase of up to 1.8 billion doses of the Pfizer-BioNTech vaccine for a mind-boggling cost of €35 billion — the largest vaccine contract ever signed by Brussels. According to one analysis, the price per dose she agreed was 15 times higher than the cost of production — meaning that the EU overpaid the vaccines by tens of billions of euros.

When the New York Times, which first broke the story in 2021, requested the messages under EU transparency rules, the Commission refused, claiming it did not possess them and that texts, due to their “short-lived, ephemeral nature”, were not subject to its record-keeping requirements. The Commission also turned down similar requests by the EU Ombudsman and the EU Court of Auditors. In January 2023, the newspaper sued the Commission, arguing that the refusal violated EU law concerning public access to official documents, regardless of format.

Today, the Court of Justice rules in favour of the newspaper, and decisively rebuked the Commission’s position. The Court found that the Commission “has not given a plausible explanation to justify the non-possession of the requested documents”. It emphasised that the Commission could not simply claim it did not hold the messages without providing credible evidence to explain why they were unavailable.

It also argued that the Commission’s argument that text messages exchanged in the context of a multibillion-euro deal were deemed to “not contain important information or information involving follow-up the retention of which must be ensured” is patently absurd. The Court further noted that the New York Times had provided “relevant and consistent evidence” confirming the existence of the text messages, including Bourla’s own statements about their role in the vaccine negotiations. Indeed, the Commission’s lack of clarity on whether the messages were deleted was also criticised. Notably, after years of ambiguity even about the existence of the messages, the Commission’s lawyers only acknowledged them last November.

In a significant move, the Court ordered the Commission to pay the legal costs of the New York Times, underscoring the gravity of the executive’s failure to comply with transparency obligations. The Commission now must decide whether to appeal the ruling or comply with it by providing the messages or face further questions about their alleged “deletion”.

Whatever course of action the Commission pursues, and regardless of how the case unfolds in court, this ruling delivers an undeniable blow to von der Leyen’s standing in the court of public opinion — where “Pfizergate” has come to epitomise the EU’s highest institution’s glaring lack of accountability and transparency, as well as the bloc’s deeply opaque and undemocratic character more in general. The ruling is particularly striking given that it comes from the European Court of Justice — an institution traditionally seen as staunchly pro-EU and typically reluctant to issue judgments that might undermine the authority of the bloc’s supranational bodies. In this case, however, the Commission’s violations appear to have been simply too blatant to overlook.

The ruling also comes amid growing criticism, even from EU leaders and officials, of von der Leyen’s centralising and authoritarian behaviour. In recent years, the Commission has expanded the scope of its executive action in virtually every field, including many that were previously the exclusive preserve of EU member states and over which the Commission has no formal competence — from fiscal and monetary policy to public health, from foreign policy to defence and security matters. And under von der Leyen, these powers have expanded to an unprecedented degree, leading to an almost “US-presidential style understanding of executive power”, as Politico wrote, and winning von der Leyen the nickname “Queen Ursula” in Brussels.

The pressure on von der Leyen is mounting beyond this ruling. The European Public Prosecutor’s Office, tasked with investigating serious financial crimes against the EU’s financial interests, confirmed that it has been investigating the Commission on its handling of the vaccine procurements.

The Queen’s reign faces no immediate threat, but the armies are mustering on the horizon.

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Thomas Fazi

Website: thomasfazi.net

Twitter: @battleforeurope

Latest book: The Covid Consensus: The Global Assault on Democracy and the Poor—A Critique from the Left (co-authored with Toby Green)