On July 17, 2024, the General Court of the European Union (EU) held that under an EU freedom of information law, the European Commission (Commission) failed to give sufficient public access to COVID-19 vaccine purchase agreements. Six members of the European Parliament (MEPs) had brought an action for annulment before the court and requested access to the documents.
Background
The General Court is one of two courts, alongside the Court of Justice, which together constitute the Court of Justice of the European Union. While the Court of Justice deals with requests for preliminary rulings from national courts and certain actions for annulment and appeals, the General Court rules on actions for annulment against EU institutions brought by individuals, companies, and, in some cases, EU member state governments.
In April 2020, the EU decided to jointly procure COVID-19 vaccines for the member states through the Commission by concluding advance purchase agreements with vaccine producers. (COM (2020) 245 final, at 2.) In 2021, six MEPs requested access to existing and future contracts between the Commission and pharmaceutical companies regarding these procurements. They based their request on the right of access to documents of the institutions accorded to any EU citizen by article 2, paragraph 1 of Regulation (EC) No. 1049/2001. The Commission’s Directorate-General for Health and Food Safety granted access to redacted versions of nine documents and invoked exceptions to the right of access, arguing their disclosure would undermine the protection of privacy and the integrity of the individual or commercial interests of those concerned. (Regulation (EC) No. 1049/2001, art. 4, para.1(b), para. 2, indent 1.)
The MEPs requested wider access to the documents insofar as the redactions were based on the protection of commercial interests, arguing in particular that certain redacted information had already been leaked in the media. They specifically requested access to the redacted definitions of the expressions “wilful misconduct” and “best reasonable efforts” in agreements with vaccine producers AstraZeneca and Pfizer-BioNTech. The Commission reexamined the initial response and granted wider partial access to eight of the documents and partial access to four additional documents. It did not grant access to the definitions requested in the MEPs’ application and did not indicate why these definitions were redacted while others were not. (Decision, para. 42.)
The MEPs sued and sought the annulment of the Commission’s decision at the General Court, objecting to the decision on multiple accounts, including that the application of exceptions to the right of access to documents was incorrect, inconsistent, and insufficiently justified. (Paras. 2 et seq.)
Decision
The court annulled the Commission’s decision to refuse access to definitions of “wilful misconduct” and “best reasonable efforts” in agreements with AstraZeneca and Pfizer-BioNTech, and to provisions on donations and resales of vaccines and indemnifications in purchase agreements. (Holding.)
Regarding the redacted definitions, the court held that the Commission failed to sufficiently explain how access could undermine the commercial interests of the companies. Referring to previous case law, the court stated that to refuse access to a document based on a risk to commercial interests requires explaining how disclosure could specifically and actually undermine the commercial interests, and how the risk is reasonably foreseeable and not hypothetical. (Para. 31.) The institution must provide sufficient information to enable the requester and the court to review whether the decision is well-founded and lawful. (Para. 34.) The court determined the Commission failed to adequately explain the reasons for the redactions, and thus infringed the exception on protecting commercial interests to the right of access to documents. (Paras. 45, 46.)
Similarly, the court found the Commission did not sufficiently explain why the contract provisions on donations and resales were redacted, especially by failing to specify how disclosure could damage the companies’ competitive positions. (Para. 185.)
Regarding redactions of indemnification provisions, the court found the Commission’s statement of reasons to be adequately specific, but rejected them on the merits, finding they did not support the conclusion that disclosure posed a foreseeable risk to the commercial interests of the companies. (Para. 169.)
The court also ruled that the Commission’s inadequate reasoning regarding some of the redactions also interfered with the MEP’s right of access to documents and freedom of expression protected by articles 11 and 42 of the Charter of Fundamental Rights of the EU, respectively, and their right to freedom of expression and information provided by article 10 of the European Convention on Human Rights. (Para. 238.)
The court rejected the remainder of the MEPs’ arguments, finding the Commission’s reasoning on other points to be adequate and well-founded, in particular considering the high demand for COVID-19 vaccines at the time. (Paras. 67, 79, 84, 87, 107, 110, 119, 142, 149, 176.) The court rejected the argument that commercial interests relating to the development of COVID-19 vaccines were not at risk because information was previously leaked in the media, finding that unauthorized disclosure of a document could not cancel out a legal exception to the right of access. (Para. 115.)
Insofar as the court found some of the MEPs’ pleas to be well-founded, it annulled the Commission’s decision, returning the matter to the Commission to decide whether further access to the documents should be granted in light of the court’s decision. (Para. 248.)
Prepared by Lena Bleckmann, Law Library Intern, under the supervision of Jenny Gesley, Foreign Law Specialist
Law Library of Congress, September 4, 2024
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