Inconsistent and Imprecise Explanations: NYT v Commission, Transparency, and the Search for Lost Documents

Table of Contents: 1. Introduction. – 2. Background. – 3. Judgment of the General Court. – 3.1. Against a narrow reading of possession. – 3.2. Obligation to provide plausible explanations. – 3.3. Document registration. – 4. Plus ça change. – 4. Conclusion.

Abstract: On May 14, 2025 the Grand Chamber of the General Court handed down its judgment in T-36/23 Stevi and the New York Times Company (NYT) v European Commission. The eagerly-awaited judgment is an unequivocal win for proponents of EU institutional transparency. The Court made short shrift of the Commission’s evasive justifications for refusing access to the requested documents and clarified the core concepts that define the scope of the access to documents regime of Regulation 1049/2001. The judgment clarifies the concept of possession, so as to discourage tactical deletion of documents by institutions, and elaborates on their obligation to provide an explanation for why the requested documents could not be found. Both are linked to the duty of the institutions to proactively promote transparency via document retention practices.

Keywords: NYT v Commission – Pfizergate – access to documents – Regulation 1049/2001 – EU transparency – possession of documents.

1.   Introduction

Transparency is a normative choice made in the Treaties and is closely linked to the democratic values that underpin the EU constitutional system. Its purpose is to inter alia foster citizen participation in decision-making, ensure greater legitimacy of those processes, and enable holding the administration to account.[1] In practice, CJEU case law on transparency centres on institutions’ refusals to grant access to documents in their possession. The Courts appear at times highly sympathetic to institutional claims to secrecy and at times as stalwart guardians of wider access.[2] In NYT v Commission,[3] the Grand Chamber of the General Court assumed the latter role.

The case is interesting from a transparency perspective, because refusal was grounded on non-possession of the requested documents. Most cases dealing with the institutions’ refusal to disclose documents rather contest their reliance on mandatory and optional grounds for refusal listed in Article 4 of Regulation 1049/2001.[4] As such, the case offered the General Court an opportunity to elaborate on the precepts underlying the Union’s access to documents regime, and to counteract the Commission's strategies for evasion at the earliest instance they may arise. This case analysis will focus in particular on the relevance of the judgment for the Commission’s document retention practices, including the meaning of ‘possession’, as well as its duty to provide reasons to an applicant for why the requested document could not be found or is not in its possession. In this sense, the most notable feature of the judgment is the Commission’s imprecise and inconsistent explanations as to the existence and location of the documents. It will first however briefly outline the access to documents regime and the background to the case to provide context.

2.   Background

The background to the case begins with the NYT’s reporting of the EU’s bid to acquire enough Covid-19 vaccines for the EU population. The Commission was striving to make up for vaccine doses its supplier AstraZeneca was unable to provide.[5] The shortage was remedied by procuring the missing doses and more from Pfizer.[6] Key to this effort were phone calls and text messages exchanged between Commission President Ursula von der Leyen and Albert Bourla, CEO of Pfizer.[7] The content of the messages garnered wide interest – particularly as the deal was for 1.8 billion vaccine doses, estimated at around 15.5 euros per shot.[8] It is these text messages that Ms. Stevi requested access to, and was subsequently denied by the Commission on the grounds that it was not in possession of the documents.

Quickly dubbed Pfizergate, the Commission’s handling of the vaccine deal became mired in controversy. It refused to even acknowledge the existence of the reported-on text messages. The matter was first considered by the European Ombudsman following a complaint by another journalist whose access request had been refused. The Ombudsman found the Commission’s conduct to constitute maladministration on two occasions.[9] The European Court of Auditors likewise noted the absence of any explanation as to how the early stages of the vaccine procurement negotiations were carried out.[10] The European Public Prosecutor’s Office (EPPO) opened an (on-going) investigation into the deal in 2022 after receiving an exceptionally high number of reports.[11]

Pfizergate is a bold example of the Commission’s attitude toward its transparency obligations, and indeed, the principle of transparency itself. While the Treaty on the Functioning of the EU (TFEU) (Article 15(3)) and the Charter of Fundamental Rights (Article 42) impress its prime importance for democracy and legitimacy of EU action, its operationalization has long been challenging.[12] Transparency is first and foremost facilitated through access to documents held by the Commission, Council and European Parliament (Regulation 1049/2001). Particularly the Commission and Council tend to interpret grounds for refusing access maximally.[13] Proactive disclosure is likewise lackluster. Attempts to amend the Regulation have long stalled, with the result that the current framework is over 20 years old. In practice this means that developments in Court case law are not reflected in the text of the Regulation, nor are the more problematic aspects of institutional practice corrected by it.[14] In fact, any attempt to recast the Regulation is in danger of further circumscribing the remit of transparency in the Union, rather than guaranteeing wider access.[15]

The starting point is openness of administration: the presumption is that documents held by the institutions are public.[16] Notably, the Regulation only applies to documents held by the institutions, not information. Although documents are defined broadly under Article 3 as ‘any content whatever its medium […] concerning a matter relating to the policies, activities and decisions falling within the institution’s sphere of responsibility’,[17] this line of division nevertheless has legal consequence. The right of access pertains only to documents in possession of the institutions, who are not obliged to draw up new ones to communicate information to an applicant.[18]

An applicant who wishes to obtain a document held by an institution may consult its public register for documents or request access directly.[19] Every document held by the institutions may not be available through its registry, which are notoriously difficult to navigate for a non-expert.[20] The institution is to respond within 15 working days, which it may extend once.[21] In practice, the Commission takes much longer on average to respond,[22] as was the case for Ms. Stevi. Upon a total or partial refusal, an applicant is entitled to make a confirmatory application.[23] A (partial) refusal by the institution in response to the confirmatory application entitles the applicant to institute court proceedings.[24] Access to Commission documents is furthermore regulated by its Rules of Procedure,[25] and a Commission Decision on records management and archives,[26] which implement the access regime in more detail.

3.   Judgment of the General Court

The applicants put forth three pleas, of which the Court only examined the third. First, the applicants alleged infringement of Article 3(a) of the Transparency Regulation in combi with article 11 of the Charter (freedom of media); second, infringement of Article 2(3) of the Transparency Regulation; and third, an infringement of the principle of good administration. The two first pleas essentially center around the definition of a document in possession of the institution. As the Commission had in its reply to the confirmatory application stated it was not in possession of the documents in order to deny disclosure,[27] the Court chose to engage with the third plea first.[28] This plea, in contrast to the first and second, is not dependent on the possession of the document and allows review of the administration’s conduct in responding to the access request. Having ruled on the third plea, the Court no longer had to consider the two others.

The Court began by stressing the importance of transparency. It reiterated that no matter what the ground for refusal, such refusal must be subject to judicial review[29] – to hold otherwise would be to confer a carte blanche for the institutions, who could simply claim inexistence or non-possession of a document so as to escape their obligations. The Court furthermore derives two starting points for the right to access to documents which frame its examination of the plea and the access regime on the whole. First, the right ‘necessarily presupposes that the documents requested exist and are held by the institution concerned’,[30] and second, a presumption of veracity attaches to an institution’s claim that the document does not exist.[31] This presumption may nonetheless be rebutted by relevant and consistent evidence presented by the applicant.[32] The preceding applies by analogy to non-possession.[33]

The Commission’s arguments and refusal to disclose should be seen against this starting point, in light of its wider, rather stingy, practice of granting access to documents. Possession of the document and the presumption of veracity may work together to effectively shield the institution concerned where it does not want to concede a document ever existed or be put in a position where it could be compelled to hand it over. It is no secret that the Commission in particular would rather deny access than grant it if disclosure meant any enhanced scrutiny of its policy choices.[34] This general attitude toward public discussion as hindrance is reflected in how the text messages were discussed both in and out of court. As the judgment illustrates, the messages between President von der Leyen and Mr. Burla oscillate in a no-mans land between inexistence and disappearance. While the ‘Commission’s replies are based either on assumptions or changing or imprecise information’,[35] and make it appear unprepared before the Court, this did not, in the Court’s view, affect the presumption of veracity[36] nor the fact that the Commission cannot be compelled to create a document with the information held in the text messages themselves.

3.1.  Against a narrow reading of possession

Even if the non-existence of a document is presumed valid, it can be rebutted. The Court clarified what the concept of possession as precondition for access entails. It held that the concept ‘cannot be limited to the possession or holding of documents by the institution at the time when it responds to the confirmatory application, since the exercise of the right of access […] would be rendered devoid of purpose if the institution concerned could, in order to escape its obligations, simply claim that the requested documents could not be found’.[37]

Thus, it suffices that an applicant shows with relevant and consistent evidence that the institution was ‘at a given time’ in possession of the document.[38] It is this teleological reading of possession that grounds the obligation on the institution to explain why it could not locate the requested documents, and how it searched for them, as part of the principle of sound administration.[39] Needless to say, the purpose is also to discourage the institutions from tactically deleting or misplacing documents. It should be noted that periodic deletion of emails is already routine policy for the Commission.[40]

Given that the text messages were mentioned on an interview transcript with the CEO of Pfizer and had been reported on, the applicants were able to provide relevant and consistent evidence that they had at some point existed and, consequently logically, been in the possession of at least President von der Leyen.[41] It would be absurd to argue that this does not constitute possession by the institution, although this is what the Commission attempted at the hearing with no success. Thus, the applicants succeeded in rebutting the presumption. The Commission for its part did not offer a consistent answer as to whether the messages existed, had been lost, or were ever in its possession – instead, it attempted to preclude the introduction into evidence of interview transcripts where the texts were mentioned,[42] and to have the argument rebutting the presumption of verity declared inadmissible.[43] While as a line of defense this is to be expected, it nonetheless does underline the unconvincing nature of the Commission’s responses during the proceedings.

3.2.  Obligation to provide plausible explanations

The institutions are under the duty to act diligently, and with care and caution in their relations with the public.[44] The rebuttal of the presumption of non-existence (and non-possession) places the ball back in the Commission’s court. Essentially, the reversal entails that the institution is presumed to have held the document in its possession, and must now furnish ‘plausible explanations enabling the applicant for access – as well as the Court – to understand why the requested documents could not be found’.[45]

The provision of reasons in the confirmatory decision has two functions. For one, from the perspective of the applicant, it is explanatory and so functions to dispel any doubts as to the credibility of the institution’s statement that a document is not in its possession. If there are instances in which the institution’s claims appear to be contrary to facts about the existence of a document, such as in the case at hand, there is reason to doubt the credibility of its statements. Ultimately, this may call into question its reputation or credibility of its access to document practices beyond one specific instance. It should be clear that this is not in the institutions’ favor – trust in the institution increases its legitimacy whereas distrust diminishes it. In this sense, the presumption of veracity has to be ‘earned’ (anew).

Secondly, from the perspective of the wider public and the Court, the provision of reasons is linked to the accountability of the EU institutions and the judicial reviewability of their actions. It is simply impossible to know whether an institution is in compliance with its obligations if it offers no account of how it has purported to perform them. The Commission fell woefully short of providing such a plausible explanation of how it had searched for the documents, and consequently, why they were no longer in its possession. Despite the fact that it had conducted a renewed search for the requested documents, it did not elaborate on the methodology of that search or which locations it had looked for the messages in.[46] It could not confirm whether the President’s Cabinet had attempted to search in von der Leyen’s phone for the texts, or where it had looked for them at all. It could offer no conclusive answer as to whether the messages still existed or had been deleted on purpose from the phone.[47] In short, in Court it appeared as though it had simply not bothered to look for the documents.

Instead, the Commission attempted to downplay the significance of its search methodology, ‘submitting that it has no bearing on the question of whether or not it held those documents’.[48] It is however hard to see how this could be the case. In the context of the Ombudsman complaint, the Commission had limited its search to registered documents,[49] which is perhaps something it did not wish to concede before the Grand Chamber. Registration and explanation of the search methodology are closely linked issues. The Court held that the Commission had not furnished a plausible explanation, as it was impossible to know what had actually become of the requested documents,[50] thus indicating that what is required is a truthful explanation.

Nonetheless, the real reason for the Commission’s lackluster performance most likely lies elsewhere. It seems that the decision not to disclose the text messages was made long ago,[51] and the case and its fallout are a matter of damage mitigation. If you do not explain what happened to the documents, then you cannot be criticized for how you handled them – only for how poor the explanation is. For this reason, there is little the Court could say about the document retention practices of the Commission in this particular case.

3.3.  Document registration

The final point of interest in the judgment revolves around the duty of the institutions to be proactive in facilitating the right to access, and with it transparency. Thus, they must draw up and retain documentation relating to their activities ‘in so far as possible and in a non-arbitrary and predictable manner’.[52] Unlike the obligation to provide reasons, facilitating access to documents via their retention applies outside the ambit of an individual access to document request. As such, it has a clear link to document retention and registration practices of the Commission.

The Commission’s arguments illustrate how registration is in practice tied to what is discoverable, and what counts as a document. The Commission Decision on Records Keeping provides in Article 7(1) that ‘[d]ocuments shall be registered if they contain important information which is not short lived or if they may involve action or follow-up by the Commission or one of its departments’.[53] Notably, its attitude toward whether text messages could be considered documents at all within the meaning of Regulation 1049/2001 has been ambivalent at best.[54] In practice, registration is what makes a document. In Court, the Commission relied on the above Article 7(1) and prior case-law to argue that internal communications and drafts were not of such importance as to warrant registration.[55]

This argument amounts to a denial of the importance of von der Leyen’s text messages, without however, an explanation of how and by whom such importance is assessed. Implicit in it is an understanding of the medium as determining the importance of the information it contains, with the result that text messages, ‘short-lived and ephemeral’ as they are,[56] would not be registered. Nonetheless, this is evidently not how the assessment ought to be taken, especially as decision-making and communication about policy moves increasingly to instant messaging applications.[57] The Court picked up on the Commission’s evasion on this point, appearing heavily skeptical of its claim that the texts were not important enough to register.[58] It is hard not to read into the relevant paragraph the Court’s understanding that the documents ought to have been registered. And indeed, it is hard to see how discussion of a multi-million procurement deal was not important and did not involve follow up by the Commission, especially as that follow up has been jabbed into the shoulders of Union citizens.

In combination with the apparent half-heartedness of its efforts to search for the documents requested, this threatens to lead to a situation where the existence of a document within the meaning of Regulation 1049/2001 is dependent on its registration. As the Ombudsman has already argued, this cannot be the case and is contrary to that Regulation.[59] Hence, according to the Court, ‘the Commission cannot rely solely on the absence of registration in its system for managing the requested documents to establish that it did not hold those documents, without any other explanation’.[60] While the Commission may be able to ignore the Ombudsman, as appears to have become its modus operandi,[61] one would hope it cannot give the Court the same cold shoulder.

4.   Plus ça change

In contrast, information is considered to be unimportant and short-lived if not keeping it would have no negative administrative or legal effect for the European Commission.[62]

The Court annulled the contested decision. The Commission will have to adopt a new decision, in which it either explains its non-possession of the document, and hence refusal to disclose, or grants access to the messages. The latter seems highly unlikely. The former would seemingly require it to elaborate on how and where it has searched for the messages so that the reason for their non-possession becomes clear – in short answer the questions the Commission found difficult to answer in the hearing. In this vein, it should also be noted that the scrutiny of the refusal to disclose was only made possible by the applicants’ ability to rebut the presumption of veracity. It is not a given that applicants can do so.

The judgment can still be appealed to the European Court of Justice. Given how utterly the Commission lost on all counts, it is doubtful whether it would lodge an appeal with its extra publicity. In a statement released after delivery of the judgment, the Commission indicated that it will ‘closely study’ the Court judgment, and adopt a “new decision providing a more detailed explanation”.[63] In that same statement, it also stated that ‘[t]he General Court does not put into question the Commission’s registration policy regarding access to documents’.[64] In other words, the Commission appears intent on minimizing the impact of the judgment.

While in general this is true – the Court did not assess the Commission’s registration policy on the whole – it did put into question the Commission’s apparent equation of registration with possession and stressed that documents must be kept. The reason it did not say more on registration may have more to do with the Commission’s avoidance of explaining how it evaluates what is important enough to retain, as noted above. In this sense the judgment is also frustrating. Its most distinctive feature is the poor quality of the Commission’s arguments. While this allows the Court to lambast the Commission’s lack of preparedness and provision of reasons, it may ultimately detract from what the Court could have said about the obligations incumbent on the institutions. From the perspective of the wider audience, the evasion by the EU executive is deeply disappointing.

The Commission continues by recommitting itself to open administration: ‘Transparency has always been of paramount importance for the Commission and President von der Leyen. We will continue to strictly abide by the solid legal framework in place to enforce our obligations’.[65]

Nonetheless, only half a year prior it adopted new Rules of Procedure that blatantly contradict both Regulation 1049/2001 and its obligations under the Aarhus Convention as implemented by the Aarhus Regulation.[66] These Rules also further regularize the non-retention of instant messages, use of which the Commission now discourages for conducting official business.[67] Likewise, tying registration together with the existence of a document is hardly a new strategy: it was already featured in the Commission 2008 proposal to recast Regulation 1049/2001.[68]

While one might hope that the judgment would lead to renewed vigor in applying Regulation 1049/2001 in line with its purported objective to open up Union administration, the stated commitment to transparency has a hollow ring to it. Absent a change of heart, the Commission’s access to documents practices following this judgment should raise more than a few eyebrows – they are a cause for concern.

5.   Conclusion

This case analysis has drawn attention to the relevance of the General Court’s judgment in NYT v Commission for shedding light on the scope of Regulation 1049/2001. It has sought to illustrate how the Court engaged with axiomatic concepts that underlie the Union’s access to documents framework and interpreted them so as to preserve its integrity. The Court interpreted the concept of possession of a document by the institutions teleologically, so as to discourage loss of documents. This the judgment ties to the duty to proactively retain documentation so as to enable the effective exercise of access rights. Review of how the institutions perform their obligations is by and large based on the reasons they provide for refusing access. On this point the judgment makes clear that, upon rebuttal of the presumption of non-possession, the institution claiming non-possession of a document must provide such plausible explanations as to make clear what has become of the requested documents. This indicates that it must explain what it has done to attempt to retrieve them – and crucially – why it has not retained them.

The decision not to retain documents that prima facie appear important enough to keep should be subject to critical public discussion about how the administration conducts itself and its affairs. The Commission has now been held to account for its shortcomings in court, but this is not the be all end all of its responsibility. Given the limits of what it is liable to do following the ruling, public discussion should also lead to political responsibility of the Commission, one way or another. This seems to be the only way in which lasting change in opaque practices is achieved and administration made more transparent for Union citizens.