While scrolling Twitter, I stumbled upon a story. It was exactly what I had been looking for. I opened a website and typed a few words, asking for more information. My request would start an avalanche. It brought on an official investigation in Brussels, news reports all over Europe, demands for action by Members of the European Parliament. Eventually, one of the world’s most renowned newspapers would sue the European Commission because of it.
When I entered the press room of the European Commission in Brussels for the first time – in August 2018, as a correspondent for netzpolitik.org – my address book was empty. Not a great start, I think.
Back then, journalism in Brussels worked through personal relationships. If you didn’t have a network, you were nobody. Those who were close to the powerful would get juicy leaks and could write big stories. Critics disparagingly call this ‘access journalism’, because in exchange for the information, journalists often adopt the perspective of their source. Yet this kind of journalism is the norm in Brussels.
However, I knew of an alternative way to obtain information – one that, at the time, was hardly ever used by the press.
The secret source of investigative journalists is called Regulation 1049/2001. This law gives Europeans the right to obtain official EU documents. Why beg for leaks when you can conveniently request documents at the click of a mouse?
There is, of course, a catch. The regulation has exceptions that limit access. EU institutions do not have to hand over documents if disclosing them threatens to ‘undermine the protection’ of the ‘public interest’. International negotiations are off limits, just like intelligence on Russian attack plans or planned interest rate changes by the European Central Bank. Sensitive information that could violate privacy or trade secrets is redacted.
The reasons for keeping documents secret are often hard to understand. Bureaucrats interpret the definition of possible harm broadly, sometimes overly broad. I studied precedents and taught myself to write appeals in quasi-legalese. It was tedious, but with time, it would bear fruit.
Investigating Big Tech lobbies
A lot of my work focuses on the lobbies of Big Tech. Google, Facebook, Microsoft and Apple spend huge amounts of money to influence legislation in Brussels. Through my requests, I managed to acquire thousands of pages of documents about Commission meetings with lobbyists.
In one investigation, I revealed how Apple and industry groups, through persistent lobbying, had been delaying the introduction of a common charger for mobile phones for over a decade. The story caused anger among MEPs. After my story and others like it caused outrage, the EU passed a new law to introduce a unified charger for all new phones.
Once, I requested faxes and letters sent to the Commission in the 1990s. It concerned the notorious law on ‘bendy bananas’
One sentence I encountered in minutes of talks between Commission officials and lobbyists put me on a trail to Australia. Via Freedom of Information requests addressed to the Australian Civil Aviation Authority, I was able to reveal that Facebook was secretly testing a drone made by the European aviation company Airbus in the Australian bush. The tech giant wanted to let drones circle over remote areas to connect them to the internet. This was supposed to provide even the last corner of the world access to Facebook. (The project has meanwhile been discontinued).
Once, I requested faxes and letters sent to the Commission in the 1990s. It concerned the notorious law on ‘bendy bananas’, which had sent British tabloids into a frenzy. Decades later, it’s still an object of ridicule. In the run-up to the Brexit referendum, Boris Johnson, a former Brussels correspondent for The Daily Telegraph, used the law as an argument for leaving the EU.
However, as my deep dive into the documents made plain, the regulation was by no means a product of ‘bonkers Brussels’ bureaucracy’, as the British newspaper The Sun would have it. Rather, it was the result of pressure from farmers and importers, who wanted to defend themselves against competition. Instead of being ‘bonkers’, it turned out to be a regulation that lobbyists and their friends in the Council wrote.
SMS messages on a Nokia
Through my enquiries, I caught a few interesting glimpses of how Brussels works. But there was one level that I couldn’t get access to. Documents that could not be found in any archive. Yet, they concerned high-level agreements, difficult negotiations and backroom deals.
Information kept leaking to the press that proved their existence. In July 2015, the AP news agency reported on a summit meeting of EU heads of state and governments on a bailout for Greece. At the time, the country was on the brink of national bankruptcy, with an exit from the Eurozone looming. Some feared a domino effect, even a collapse of the common currency.
A single text message reportedly prevented the talks from collapsing – and it saved the euro
In the dead of night, President of the EU Council Donald Tusk sat in the room where German Chancellor Angela Merkel and French President Francois Hollande were arguing with Greek head of government Alexis Tsipras about a debt deal. The situation appeared to be deadlocked. It came unstuck only after Dutch Prime Minister Mark Rutte texted Tusk a compromise proposal, according to the AP report. And indeed: an agreement was reached that saved Greece from bankruptcy.
A single text message reportedly prevented the talks from collapsing – and it saved the euro.
The text message in question might be the key to a historical event. Yet its content is unknown – likely forever. Later, Rutte came under political scrutiny when he publicly stated that he had routinely been deleting all his text messages every day for years, even though he was presumably violating the Dutch archives law by doing so. Rutte claimed that his old Nokia simply couldn’t store more than 20 messages. He got off scot-free.
A few messages on a mobile phone could simply not be important enough to keep – with this explanation, the Dutch head of government evaded his transparency obligations. And he was not the only one doing so.
Navigating the pandemic via text messages
When Angela Merkel left office in December 2021, she took her mobile phone with her. During her 16 years as Chancellor, she ruled Germany by text message. In her last two years in office, Merkel was in contact with Commission President Ursula von der Leyen, her former defence minister, ‘almost daily’, the Süddeutsche Zeitung reported.
The German chancellor prepared important decisions, whether in Europe or at home, through intensive text exchanges. There was hardly anyone in top German politics who did not receive messages from Merkel. ‘I looked in my mobile phone and skimmed the text messages with the Chancellor,’ recalled Bodo Ramelow, the Prime Minister of Thuringia. ‘It’s a document of modern history – for instance, it contains all the coordination during the pandemic.’
Although their historical value can hardly be disputed, not a single mobile phone message sent by Merkel ended up in the German Federal Archives.
In May 2019, I asked the Council of the European Union for all messages between the heads of state and government and Council President Tusk. Tusk was in daily contact with the EU leaders, he organised summits and mediated in disputes. He must have written and received hundreds, perhaps thousands of messages. But the Council categorically refused. There were no chats from the Council President, it claimed. Its explanation: ‘short-lived’ messages were simply not stored. A document was only archived when it contained ‘essential’ information.
But who decides what is ‘essential’?
Secrecy for discussions at the highest levels
In September 2020, I asked the European Commission how many SMS messages or correspondence via services like WhatsApp, Telegram or Signal it had in its archives. Its answer: none. The justification was odd. The EC said it lacked the means to store mobile phone chats. It is true that their content can be copied and added to a file – but then their origin can no longer be traced, and no metadata is stored. In other words, the Commission seemed to say: ‘There might be something, who knows?’
The European Union has enshrined a clear principle in its Charter of Fundamental Rights. Article 42 of the Charter states that everyone in Europe has the right of access to ‘documents of the institutions, bodies, offices and agencies of the Union, whatever their medium’.
At a reception in Brussels, I argued with a press officer. Governments must be able to speak and act in confidence, she claimed. If everything was to become public, real negotiations would be impossible. Behind closed doors, one side might offer concessions, the disclosure of which would cause the talks to fail or cause trouble later. The backroom give-or-take on which international diplomacy is based must remain behind closed doors, the argument goes – otherwise there could be no new EU laws, no climate treaties, no peace talks.
When politicians do not want to publicly justify what they did behind closed doors, it damages debate, indeed democracy
I pondered the argument. What if too much transparency caused harm? Wouldn't it be better to allow some leeway – and some secrecy – for decisions at the highest levels?
The Court of Justice of the European Union provided an answer to these questions. Over the years, it has handed down landmark decisions on freedom of information. EU institutions do need a ‘space to think’ for their internal decision-making, a protection of the confidentiality of their deliberations. This space has been preserved by the Court.
However, the EU Court of Justice does not allow for a blanket denial of requests. When access is denied, there must be a concrete and non-hypothetical justification for doing so. This applies especially where laws are being made. Time and again, the court forced EU authorities to publish documents.
Transparency strengthens trust in the institutions, because it allows for discussion on the differences between points of view, the court wrote in a much-noticed ruling. ‘It is in fact rather a lack of information and debate which is capable of giving rise to doubts in the minds of citizens, not only as regards the lawfulness of an isolated act, but also as regards the legitimacy of the decision-making process as a whole.’ When politicians do not want to publicly justify what they did behind closed doors, it damages debate, indeed democracy.
Saving millions of lives
In November 2021, Ursula von der Leyen took to a stage and recounted a heroic story, her voice raised. She described a key event in her term as the head of the EU Commission. During the pandemic, Von der Leyen was able to present herself as a doer.
‘You chose to put billions of dollars at risk,’ she said, ‘because if you didn’t try, the whole world would pay the price.’
She was addressing Albert Bourla, the CEO of the pharmaceutical giant Pfizer. Bourla and the Commission chief were guests of honour at a gala event in Washington D.C., where the think tank Atlantic Council was awarding them both for their leadership. Hundreds of millions of people had been vaccinated; the Pfizer-BioNTech vaccine was a success story.
Bourla started mass production of vaccines only months after the outbreak of the covid pandemic. At that time, the vaccine was not yet approved and the mRNA technology behind it was untested, Von der Leyen stated on stage.
‘You and your team might have saved millions of lives.’
Bourla’s gamble paid off. The EU bought vaccines for billions of euros. Exactly how much it paid is not publicly known. But one thing is certain: in 2021, Pfizer almost doubled its global turnover compared to the previous year. It went from 41.6 billion to 81.3 billion dollars.
When AstraZeneca and other pharmaceutical companies failed to deliver their promised vaccine doses in spring 2021, Von der Leyen personally negotiated new supplies with Bourla. The EU had already signed contracts for 600 million doses with Pfizer. Now, the EU would be buying an additional 1.8 billion doses, about four for every EU citizen.
Von der Leyen told The New York Times how she made it happen, in a story headlined ‘How Europe Sealed a Pfizer Vaccine Deal With Texts and Calls’.
More, and more expensive contracts
Yet certain details didn’t fit Von der Leyen’s heroic narrative. Soon after, the Commission chief dodged uncomfortable questions about her billion-dollar deal.
What exactly was agreed upon with the manufacturers, and how these agreements came about, is something the EC has kept under wraps to this day. The Commission has indeed disclosed its purchase contracts with the vaccine producers, but those have been heavily redacted. Information on prices paid, delivery times, clinical trials, liability issues and dispute resolution arrangements is missing from the published versions of the contracts.
The biggest vaccine contract – the one brokered via chats and phone calls – is also the one that left the most questions open
The biggest vaccine contract – the one brokered via chats and phone calls – is also the one that left the most questions open. The Commission refused to answer even basic requests, such as when negotiations took place and what was discussed, the European Court of Auditors concludes in its report (see point 49).
According to leaked information, the EU has paid significantly more for the top-up purchase than for its first vaccine deliveries. Pfizer-BioNTech raised the price per dose from 15.50 to 19.50 euros, according to leaked partial contracts seen by the Financial Times. In the meantime, hundreds of millions doses have been delivered – the deal probably brought the pharmaceutical consortium a profit of billions. No one can explain why the price went up after the first deliveries.
Moreover, the Commission ordered far too many vaccines. In January 2023, it asked Pfizer-BioNTech for 500 million fewer doses than originally agreed upon, due to flagging demand. Did Von der Leyen make a panic purchase while there was a huge vaccine shortage, for which Europe is now paying the price?
Von der Leyen’s wiped mobile phone
A few weeks after I had requested the text messages that had been exchanged between Ursula von der Leyen and the head of Pfizer – my snowball – I received a written reply. The Commission stated that it had searched its archives. ‘No documents falling within the scope of your request could be identified.’
I pored over the letter. It claimed that the Commission is ‘not obliged to preserve each and every document’. As a text message is ‘by its nature a short-lived document which does not contain in principle important information’, the EC administration finds that its ‘record-keeping policy would in principle exclude instant messaging’.
So Von der Leyen’s messages are unimportant? Even those dealing with the most important purchase the EC has ever made. Have these messages simply been deleted?
In the ministry’s communications office, IT specialists carried out a “security wipe” on Von der Leyen’s phone. All her messages were now gone – forever
Erasing her digital tracks would be nothing new for Von der Leyen. When she was German Defence Minister, the Bundeswehr was undergoing a massive upgrade. Billions were spent on new weapons, vehicles and ammunition. There was also a lot of money available for consultancy contracts. Too much money, as the German Federal Audit Office concluded later.
Von der Leyen and her State Secretary for Armaments, Katrin Suder, a former consultant at McKinsey, awarded up to 150 million euros a year to consulting firms. In January 2019, the Bundestag set up a special committee to review the matter. Von der Leyen was accused of having awarded contracts worth millions of euros directly to consulting firms without inviting tenders.
The committee demanded Von der Leyen’s official mobile phone as evidence. But a good month later, in the summer of 2019, a driver collected the mobile phone from the minister’s home. In the ministry’s communications office, IT specialists carried out a ‘security wipe’. All of Von der Leyen’s messages were now gone – forever. Questioned by the committee, Von der Leyen later said she ‘can no longer remember’ the mobile phone.
Enter the Ombudsman
Had Von der Leyen performed the same trick and wiped her correspondence with Pfizer? I decided to lodge a complaint with the European Ombudsman Emily O’Reilly about the Pfizer messages. The Ombudsman couldn’t force the Commission to produce documents. But she could investigate the case and make public recommendations.
Was it correct for the Commission to claim that it did not, and does not have to, archive Von der Leyen’s messages? No, said O’Reilly. She established that the Commission did not even try to retrieve the messages from the President’s mobile phone – a case of ‘maladministration’. The Ombudsman pressed the Commission to create a solution to routinely store and archive texts.
The Commission stonewalled demands for transparency. It told the Ombudsman that it wouldn’t keep text messages. But the pressure kept growing. Media outlets across Europe were reporting about the case, from The Guardian to Le Monde to Der Spiegel. The lack of oversight in a procurement process worth billions caused outrage, even in scandal-prone Brussels. The European Parliament invited Von der Leyen to explain herself.
I emailed Matina Stevis-Gridneff, the Brussels bureau chief of The New York Times. After all, it was her story that I stumbled upon on Twitter. She had revealed the existence of the text messages that led me to file my request. I told her about the Ombudsman’s decision.
Matina answered indignantly. ‘Can’t believe they have legal ground to stand on this one.’ We talked about possible next steps. The Ombudsman’s ruling had put a spotlight on the issue. Journalists were writing about it. But the Commission could carry on just as before, because the Ombudsman’s decision is not legally binding. Having O’Reilly on board was not enough.
A snowball turned into an avalanche
The New York Times hired lawyers. I helped with research to prepare their lawsuit. On 25 January 2023, The New York Times filed a brief with the EU court demanding the release of Von der Leyen’s messages with Bourla. The case got called ‘Stevi and The New York Times v. Commission’. The snowball, my small request dating a few months back, had turned into an avalanche.
At stake is more than just texts. An exemption for ‘ephemeral’ messages would not only hide exchanges via SMS and WhatsApp from the public, but also internal communication via coworking software like Slack or Teams. In the Council of the European Union, entire working groups operate via group chats. If these remain completely off the record, it would weaken transparency severely and create an incentive to move more and more communication into the grey zone of texting – an all-out challenge to the EU’s transparency laws.
Should transparency laws be limited to the documents the bureaucracy decides to put on file?
The EU’s Court of Justice can change this. It can force disclosure of these texts and set a legal precedent. It ultimately boils down to a simple question – is an EU institution allowed to decide by itself what is and what is not a ‘document’? And should transparency laws be limited to the documents the bureaucracy decides to put on file?
Meanwhile, the Commission has been changing its story. Health Commissioner Stella Kyriakides recently told Parliament that Von der Leyen never even took part in buying doses from Pfizer. ‘The Commission President was not involved in the negotiations on the COVID vaccine contract.’ An astounding statement, considering that Von der Leyen has publicly talked about her role in the deal. Was her heroic story about the vaccine deal just fibbing?
In an interview with an Italian newspaper, I was asked what scandal is hiding in the messages. None, I said. Probably the content of the messages is banal, at best it might reveal a few telling details. Ultimately, that is not what this is about. The issue is one of governance in the digital age – is government action on the phone really above and beyond scrutiny?
Peter Tetteroo 2
jean guy GIRAUDPeter Tetteroo
The Commission has already disclosed all official documents about it. Mrs Von der Leyen - as well as any other member of the Commission - may have had direct contacts with the industry but certainly not negotiated terms of contracts. Such contacts are both usual and necessary. While not considered as "secret", they do not fall under the category of "documents" opened to the public. This is probably what the ECJ will rule.