Summaries of judgments: Stevi and the New York Times v Commission

Summaries of judgments made in collaboration with the Portuguese judges and référendaire of the General Court (Maria José Costeira, Ricardo Silva Passos and Esperança Mealha)

Judgment of the General Court (Grand Chamber), 14 May 2025,

Case T-36/23 Stevi and The New York Times v Commission

Access to documents – Regulation (EC) No 1049/2001 – Documents relating to the text messages exchanged between the President of the Commission and the chief executive officer of the pharmaceutical company Pfizer – Refusal to grant access – Presumption of veracity associated with the declaration of lack of possession of documents – Absence of plausible explanations making it possible to establish the reasons for non-existence or lack of possession – Retention of documents – Principle of good administration

Facts

The General Court (hereinafter “GC”), sitting as grand chamber, upheld the action brought by Ms Matina Stevi, journalist of The New York Times, and by The New York Times Company, and annulled the final decision of the European Commission rejecting Ms Stevi’s request for access to all the text messages exchanged between Commission President Ursula von der Leyen and Albert Bourla, chief executive officer of the pharmaceutical company Pfizer, between 1 January 2021 and 11 May 2022, as part of the Commission’s purchase of vaccines from Pfizer in the context of the COVID-19 pandemic.

In its decision (hereinafter “the contested decision”), sent to Ms Stevi on 16 November 2022 and adopted in accordance with the detailed rules for the application of Regulation regarding public access to European Parliament, Council and Commission documents,[1] the Commission stated that, since it did not hold any document corresponding to the description given in the initial application, it was not in a position to grant that application.

Decision

Admissibility

In the defense, the Commission argued that The New York Times Company did not have standing to bring the action, pointing out that the initial application for access to documents had been submitted solely by Ms Stevi and that the confirmatory applications were made by a third person who declared to represent Ms Stevi acting on behalf of The New York Times Company. In addition, the Commission stated that Ms Stevi had been the sole addressee of the contested decision.

In that regard, the GC pointed out that the action is admissible in so far as it is brought by Ms Stevi, a fact which the Commission moreover has not disputed, and that according to settled case-law, where only one application is involved, as soon as one of the applicants has locus standi, there is no need to examine the standing of the other applicants. Consequently, since Ms Stevi has standing to challenge the contested decision, the GC declared the action admissible, without it finding it necessary to examine the locus standi of The New York Times Company.

Substance

In support of their action, the applicants put forward three pleas in law, alleging, first, infringement of Article 3(a) of Regulation No 1049/2001 and Article 11 of the Charter of Fundamental Rights of the European Union (hereinafter “the Charter”), second, infringement of Article 2(3) of Regulation No 1049/2001 and, third, infringement of the principle of good administration.

The GC examined only the third plea in law, in which the applicants criticized the Commission for having infringed the principle of good administration by confining itself, in order to refuse their request for access to the documents, to invoking the non-existence of the requested documents without providing any explanation as to why the requested documents could not be found.

The GC pointed out that the purpose of Regulation (EC) No 1049/2001 is to give the fullest possible effect to the right of public access to documents held by the institutions. Nevertheless, according to settled case-law, where an institution states that a document does not exist in the context of an application for access, the non-existence of that document is presumed, in accordance with the presumption of veracity attaching to that statement. Furthermore, that presumption must be applied by analogy where the institution declares that it is not in possession of the documents requested. However, such presumptions may be rebutted in any way, on the basis of relevant and consistent evidence produced by the applicant for access.

On that matter, the GC stated that, since the Commission in the contested decision and throughout the procedure maintained that it did not possess the requested documents (although it did so imprecisely) it would be for the applicants to adduce relevant and consistent evidence enabling the presumption of lack of possession of those documents to be rebutted.

The GC highlighted that the applicants had adduced relevant and consistent evidence describing the existence of textual exchanges between the President of the Commission and the chief executive officer of Pfizer, thereby rebutting the presumption that they did not exist and, consequently, the presumption of their lack of possession. These elements are the article published in The New York Times on 28 April 2021, Ms Stevi’s interviews with the President of the Commission and the chief executive officer of Pfizer and the special report of the European Court of Auditors confirming the informal negotiation process that was conducted when negotiating vaccine contracts in the context of the COVID-19 pandemic.

Since the applicants had rebutted the said presumption, the GC pointed out that it was for the Commission, in accordance with the principle of transparency and the duty to act diligently which underpin the right of access to documents and require the EU administration to act with care and caution, to provide plausible explanations enabling the applicants for access and the GC to understand why the documents requested could not be found.

However, the GC considered that the Commission had not provided plausible explanations and therefore failed to fulfil its obligations when processing the application for access to documents, breaching the principle of good administration laid down in Article 41 of the Charter.

In the first place, the GC pointed out that, on the one hand, the Commission merely stated in the contested decision that, despite further in-depth searches, it had not been able to identify any document covered by the request for access to documents, without specifying the scope, terms, types and methodology of searches carried out or which document storage locations might have been consulted. On the other hand, the explanations provided by the Commission in its reply to a written question made by the court and at the hearing on the manner in which the documents requested were sought were not precise. The GC therefore considered that, as regards the searches carried out to find the requested documents, the explanations set out both in the contested decision and in the present proceedings were not sufficient to credibly explain the reasons why those documents could not be found.

Secondly, the GC noted that the Commission did not sufficiently clarify whether the requested text messages had been deleted and, in that case, whether such deletion took place voluntarily or automatically, whether the President’s mobile phones had in the meantime been replaced or whether they were the subject of searches carried out following the applicants’ initial request and confirmatory application. The GC concluded that, in those circumstances, the Commission’s explanations were based on assumptions and, as such, could not be regarded as plausible.

Thirdly, the GC criticized the Commission’s claim that the text messages would have been registered, and thus identified, if they had contained important information which was not short-lived or if they might have involved action or follow-up by the Commission or one of its departments.

In that respect, the GC recalled that the effective exercise of the right of access to documents, which follows from the requirement of transparency, requires that the institutions concerned, in so far as possible and in a non-arbitrary and predictable manner, draw up and retain documentation relating to their activities, associated with the obligation of good administration enshrined in Article 41 of the Charter. Thus, the institutions cannot deprive of all substance the right of access to documents which they hold by failing to register the documentation relating to their activities.

The GC also denounced the fact that the Commission had failed to explain why it had reached the conclusion that the text messages exchanged between its President and the chief executive officer of Pfizer did not contain important information which was not short-lived or which could involve follow-up by it or one of its services, concerning a matter relating to the policies, activities and decisions falling within its remit. 

Finally, on that third point, the GC criticized the fact that the Commission relied solely on the absence of registration of the requested documents in its system to establish that it did not hold those documents, without any other explanation.  

Consequently, in the light of these considerations, the GC upheld the third plea in law raised by the applicants and annulled the contested decision, without examining the other pleas in law or the applicants’ request for a measure of inquiry.

[1] Article 4 of the detailed rules for the application of Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001.