EU Commission must publish Covid vaccine contracts in full, says top court lawyer
by https://euobserver.com/author/benjamin-fox/ · EUobserverThe ECJ’ should reject an EU Commission appeal to prevent it from having to publish unredacted documents related to its procurement of Covid-19 vaccines (Photo: World Bank / Henitsoa Rafalia)
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By Benjamin Fox,
The European Commission is set to be forced to publish complete versions of its multi-billion euro contracts to buy Covid-19 vaccines after the lawyer to the EU’s top court urged it to throw out an appeal by the EU executive.
In a legal opinion published on Thursday (11 June), the advocate general at the European Court of Justice, Athanasios Rantos, said that a 2024 court ruling that requires the commission to disclose unredacted versions of the contracts should remain intact.
In July 2024, the EU’s top court ruled that the EU executive had not granted the public sufficiently broad access to the agreements for the purchase of Covid-19 vaccines.
The case against the commission was initially brought by five Green MEPs in 2021, requesting access to documents related to the joint purchases of Covid vaccines.
At the time, the commission had only shared heavily redacted versions of the Covid-19 vaccine purchase agreements, arguing that full disclosure would impinge on commercial confidentiality and that naming the officials who brokered the contracts would affect their right to privacy.
The court added that the commission should also have published text messages between commission president Ursula von der Leyen and Pfizer chief executive Albert Bourla, who personally negotiated a €35bn vaccine contract, effectively bypassing the normal public procurement process.
During the pandemic, the commission agreed contracts with pharmaceutical giants including Pfizer, AstraZeneca, and Moderna to procure up to 4.6 billion doses of the Covid-19 vaccine, worth €71bn for the bloc’s 27 countries.
In his opinion, Rantos said that “the commission has not demonstrated that the disclosure of the clauses relating to indemnification would be such as to encourage abusive strategic conduct or to increase the risk of liability claims against the pharmaceutical undertakings”.
Rantos added that “the disclosure of anonymised versions of declarations of no of conflict of interests does not make it possible for the impartiality of the members of the negotiation team to be specifically and effective ascertained.”
Though advocate general opinions are not binding on the Court, in practice it is rare for judges to disagree with them.
The commission, which has only ever published documents that omit the names of the officials involved in the negotiations as well as contract clauses related to indemnifying the pharma companies, then quickly lodged appeals before the Court of Justice to avoid complying with the ruling.
The commission was not alone in scrambling to buy vaccines, personal protective equipment, ventilators and other medical kits when the scale of the Covid pandemic became clear in spring 2020. In the process, standard procurement rules were often ignored to save time, resulting in large amounts of public money being lost to corruption and inflated tender prices.
For its part, the commission argued that it had “needed to strike a difficult balance between the right of the public, including MEPs, to information, and the legal requirements emanating from the Covid-19 contracts themselves, which could result in claims for damages at the cost of taxpayers’ money.”
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The ECJ’ should reject an EU Commission appeal to prevent it from having to publish unredacted documents related to its procurement of Covid-19 vaccines (Photo: World Bank / Henitsoa Rafalia)
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Author Bio
Benjamin Fox is our trade and geopolitics editor. His reporting has also been published in the Guardian, the East African, Euractiv, Private Eye and Africa Confidential, among others. He is based in Nairobi, Kenya, although he often reports from London.
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