‘Rule of law?’ European Commission defies court order

On March 4, the Grand Chamber of the Court of Justice of the European Union convened to hear the European Commission’s appeal against its own judicial defeat. The 260-seat courtroom was full: Citizens, lawyers, and observers gathered to witness what has become one of the most consequential transparency battles in the EU’s recent history. 

At stake is whether the Commission will be compelled to release the full indemnification clauses of its Covid-19 vaccine purchase contracts, and the names of the officials who negotiated them on behalf of half a billion European citizens, who footed the bill. 

The hearing followed a significant defeat for the Commission at the EU General Court in July 2024. In twin rulings, brought respectively by the now-deceased French Green MEP Michèle Rivasi and fellow members of her parliamentary group, and by 2,089 ordinary citizens represented by French lawyer Arnaud Durand, the lower tribunal found that Brussels had failed to adequately justify the redactions applied to both the contracts and the names on the conflict-of-interest declarations signed by members of the joint vaccine negotiating team.

The court ordered the Commission to disclose the documents. Rather than comply, Brussels filed an appeal on September 27, 2024, and has not released them.

Between 2020 and 2021, the Commission signed advance purchase agreements with major pharmaceutical companies, including Pfizer-BioNTech, Moderna, and AstraZeneca, committing some €2.7 billion in upfront payments. By November 2021, total contracts had reached €71 billion for up to 4.6 billion doses.

When MEPs and members of the public subsequently requested access to the contracts and declarations of conflicts of interest under Regulation 1049/2001 on public access to documents, they received heavily redacted versions. The Commission justified the deletions on grounds of protecting the commercial interests of the pharmaceutical companies, and the personal data of individual officials.

Before the Court of Justice on March 4, Commission lawyers Antonios Bouchagiar, Alessandro Spina, and Miguel Burón Pérez defended those redactions with vigour. The contracts, they argued, were not boilerplate. “These are not standard contracts with boilerplate clauses,” one Commission representative told the court. “These are long and complex contracts.” Disclosing the indemnification terms, they maintained, could expose pharmaceutical firms to strategic litigation by what they described, in a phrase that drew attention in the courtroom, as “damages trolls”, litigants who would exploit knowledge of liability thresholds to fabricate claims.

On the question of the negotiators’ names, the Commission invoked a more striking argument: Disclosing the identities of the civil servants involved could expose them to “psychological or physical” harassment by “conspiracy theorists”. 

That position drew pointed scepticism from the bench. Koen Lenaerts, president of the Court of Justice, interrupted the Commission’s submissions with a direct challenge. “Normally I would not intervene, but do you really mean that?” he asked. “Does the public not have an obvious interest in verifying the neutrality of the officials dealing with such an important matter? I mean, it should be obvious there is no conflict of interest. It should be obvious to all the public. So, you say the mere interest in verifying the impartiality is not enough, but that is the very essence of transparency.”

For the applicants, lawyer Raluca Gherghinaru, representing the MEPs, framed the case in constitutional terms. “Transparency is not some abstract aspiration,” she told the court. “It is a constitutional value expressly enshrined in the treaties. It enables EU citizens to understand how decisions are taken, to scrutinise the exercise of public power and to hold institutions accountable.” She added: “In a union founded on representative democracy, access to documents is not a procedural luxury. It is one of the essential mechanisms through which accountability becomes real and effective.”

Arnaud Durand is equally unsparing. Speaking to Brussels Signal, he described the Commission’s posture as self-defeating. “The Commission acknowledges that the impartiality of civil servants serves the public interest, yet simultaneously contends that verifying it would not,” he said. 

Compounding the pressure on the Commission is its failure to comply with those parts of the July 2024 ruling that are already enforceable. While Brussels sought and obtained a provisional stay of execution on the disclosure of the negotiators’ names pending the appeal, it requested no such suspension regarding the indemnification clauses.

Those clauses are therefore subject to immediate disclosure under EU law: Appeals before the CJEU carry no automatic suspensory effect, a principle enshrined in Article 60 of the Statute of the Court of Justice. Yet the Commission has not released them.

On October 18, 2024, lawyer Arnaud Durand sent a formal notice to the Commission, reviewed by Brussels Signal, demanding compliance. He received no reply. “The Commission chooses, with full knowledge of what it was doing, to violate the EU General Court’s decision,” Durand told Brussels Signal, “which amounts to a breach of the rule of law it professes to champion to the whole world.” The Commission is “turning a deaf ear” and “playing for time”, betting on a favorable ruling from the CJEU that would spare it any obligation to publish the Covid contracts, he added.

Asked to respond, a spokesman for the Commission told Brussels Signal that it does not comment on ongoing legal proceedings.

The vaccine contracts dispute does not stand alone. The March 4 hearing came just months before a separate but closely related General Court ruling in May 2025, which found that the Commission had failed to account for the disappearance of text messages exchanged between Commission President Ursula von der Leyen and Pfizer chief executive Albert Bourla during vaccine negotiations, a case brought by The New York Times, and known informally as “SMS-gate.”

For Durand, these cases form part of a broader pattern. He noted that “as vaccine dose orders increased, so did the price, the inverse of ordinary commercial logic, under which bulk volumes should drive unit costs down, not up”. He also points out that von der Leyen’s husband, Heiko von der Leyen, has held a directorship at Orgenesis, a company specialising in mRNA technologies, since December 2020, the very period during which the Commission was negotiating its vaccine contracts. Von der Leyen herself has acquired stock options in the firm. “Here we have a documented conflict of interest, met with nothing but opacity,” he told Brussels Signal.

In a 2022 report, the European Court of Auditors has established that “during the month of March 2021, the President of the Commission conducted the preliminary negotiations aimed at concluding a contract with Pfizer/BioNTech”, a contract signed on May 19, 2021 that it describes as “the largest Covid-19 vaccine supply contract.” For Durand, two scenarios are possible: “Once the conflict-of-interest declarations are released, either von der Leyen did not sign one, or she did, and failed to disclose her interests”.

He further warned that the Commission’s refusal to publish the Covid contracts carries direct consequences for those harmed by the vaccines who seek legal redress: While some contract details have surfaced through press leaks, only officially disclosed versions carry full evidentiary weight before a court, Durand said. “In practice, it amounts to a lock placed on victims’ rights”.

The Court of Justice is expected to receive the Advocate General’s conclusions on June 11. While no official date has been announced, a final ruling is expected sometime between September and December of this year.