João Pedro Sousa (master’s student in European Union Law at the School of Law of the University of Minho)
The role of transparency in EU Law
Transparency within the European Union’s constitutional order is not a matter of institutional courtesy or political goodwill: it is a binding legal obligation anchored in the Treaties and the Charter of Fundamental Rights of the European Union (CFREU). The EU’s legitimacy as a supranational legal order is not derived solely from formal democratic representation, but from its ability to guarantee open governance, accountability, and legal certainty. These principles converge in the citizen’s right of access to documents, which is both a general principle of EU law and a fundamental right under Article 42 CFREU.[1] Regulation (EC) No 1049/2001 operationalises this right, setting the legal framework for public access to the documents of the EU institutions.[2] Article 11(2) TEU, which mandates the Union institutions to maintain an open, transparent, and regular dialogue with civil society, reinforces the legal architecture of transparency, a requirement that becomes especially salient when decisions involve significant public expenditure and health policy.
Against this normative backdrop, the judgment delivered by the General Court (GC) in Case T‑36/23 on 14 May 2025,[3] publicly referred to as “Pfizergate”, emerged as a pivotal episode in the evolution of EU transparency law. [4] The dispute was triggered by a request submitted by journalist Matina Stevi of The New York Times, seeking access to text messages allegedly exchanged between the President of the European Commission, Ursula von der Leyen, and Albert Bourla, CEO of Pfizer.[5] The messages were reportedly exchanged during negotiations that led to a contract for the procurement of 1.8 billion doses of the Pfizer-BioNTech COVID‑19 vaccine, amounting to approximately €35 billion in public expenditure, plus an additional €2.4 billion in related contracts. The Commission’s refusal to grant access to these communications, on the grounds that they were not in its possession, raised fundamental questions about the scope of transparency obligations and the nature of institutional accountability during states of emergency. [6]
In this context, this judgment is not merely the adjudication of an individual dispute, but a judicial intervention that clarifies the scope of transparency obligations under Union law when informal communications intersect with matters of exceptional public interest. Rather than resolving the tension between modern administrative practice and established legal standards, it exposes structural deficiencies in the current approach to document registration, disclosure, and accountability. It functions not merely as a procedural guarantee, but as a constitutional mechanism to enable institutional accountability and public participation in the governance of the Union.
It is from this starting point that the present analysis proceeds, seeking not only to examine the legal reasoning adopted by the GC on this case, but also to scrutinise its underlying assumptions and institutional implications. The broader implications of the dispute call into question not only procedural compliance, but also the normative coherence of the Union’s transparency framework in times of institutional strain. As will be developed in the sections that follow, the judgment raises important questions about the constitutional function of transparency and the adequacy of existing legal mechanisms to uphold it in practice.
The Pfizergate case and the General Court’s judgment
The dispute arose from a request submitted on 11 May 2022 by Ms Matina Stevi, a journalist at The New York Times, who sought, pursuant to Regulation No 1049/2001, access to all text messages exchanged between the President of the Commission and the CEO of Pfizer between 1 January 2021 and 11 May 2022 (para. 2). After receiving no reply within the deadline laid down in Article 7(1) of the Regulation, a confirmatory application was submitted on 28 June 2022 under Article 7(4) (para. 3). The Commission responded on 20 July 2022, stating that it did not hold any documents matching the request (para. 4). A second confirmatory application followed on 9 August 2022 (para. 5). The Commission extended the deadline by 15 working days (para. 6) and, on 21 September 2022, indicated that the draft decision required legal clearance (para. 7). On 16 November 2022, the Commission adopted the contested decision, reiterating that it did not hold any documents within the scope of the request and therefore denied access (para. 8).
The applicants asked the GC to annul the contested decision and order the Commission to bear the costs (para. 9). The Commission, in turn, requested that the action be dismissed and the applicants ordered to pay the costs (para. 10).
The applicants advanced three pleas in law: (i) infringement of Article 3(a) of Regulation No 1049/2001 and Article 11 of the CFREU, (ii) infringement of Article 2(3) of Regulation No 1049/2001, and (iii) infringement of the principle of good administration under Article 41 CFREU. The GC addressed first the third plea, regarding the Commission’s failure to adequately justify the non-disclosure of the requested documents (paras. 21–22).
The applicants argued that the Commission’s refusal to disclose the requested text messages violated the principle of good administration, contending that a mere denial of existence, without sufficient explanation, was inadequate (paras. 23–24). They submitted that the article published in The New York Times and the interviews with the Commission President and Pfizer’s CEO proved the material existence of the messages, thereby rebutting the presumption of veracity attached to the Commission’s declaration. This, they claimed, shifted the burden onto the Commission to provide plausible explanations for non-possession (para. 25).
They criticised the lack of clarity in the Commission’s description of its search methodology, particularly regarding whether it covered unregistered messages or storage locations like mobile phones (para. 26). The Commission challenged the admissibility of these arguments under Article 84(1) of the Rules of Procedure, arguing that they were raised only in the reply (paras. 27–28).
However, the GC held that these arguments merely amplified claims made in the application and were therefore admissible (paras. 31–35). Substantively, it reaffirmed that Regulation No 1049/2001 aims to guarantee the fullest possible access to institutional documents (para. 36), and that institutions must justify refusals, including when documents are claimed not to exist (para. 37). The non-existence of a document is subject to a rebuttable presumption of veracity (paras. 38–39), and if rebutted, the institution must provide plausible explanations (para. 40).
Moreover, the GC reiterated that institutions are required to retain documentation of their activities and must act with care in searching for documents (paras. 41, 59).
In this case, while the Commission asserted in the contested decision that it did not hold the messages, it later admitted that it “never denied” their existence (paras. 42–43). At the hearing, it was unable to confirm or deny their past existence, instead offering vague justifications (para. 44). The GC considered these replies to be based on “assumptions or changing or imprecise information” (para. 45), insufficient to overcome the applicants’ evidence (para. 46).
The GC clarified that “possession” must include past possession, to prevent circumvention of transparency obligations (para. 47), and accepted that the applicants had submitted consistent evidence from journalistic sources and interviews substantiating the existence of the messages (paras. 48–57). It thus held that the presumption of non-possession had been rebutted (para. 58).
Given this, the Commission was required to provide plausible explanations. It failed to do so. First, its description of the renewed, thorough search lacked detail as to scope, methods, and storage locations consulted (paras. 61–63). The Commission could not even confirm whether mobile phones had been examined or replaced, or whether the President had been asked about the texts (paras. 64–66). This lack of detail made the explanation implausible (paras. 67–68).
Second, the Commission speculated that the documents may never have existed or had been deleted, without confirming the deletion or the status of the mobile devices (paras. 69–72). These speculative explanations were also held to be implausible (para. 73).
Third, the Commission invoked Article 7(1) of Decision 2021/2121 to argue that text messages not involving important or non-short-lived information would not have been registered (paras. 74–75). However, this assertion was made only during litigation, not in the contested decision itself (paras. 76–77). The GC held that the Commission cannot deprive the right of access of substance through non-registration alone, especially in the absence of any reasoned justification (paras. 78–82).
Ultimately, the Commission failed to provide any plausible explanation for the inability to find the requested documents, thereby breaching the principle of good administration enshrined in Article 41 CFREU (paras. 84–85). The GC upheld the third plea and annulled the contested decision, with costs awarded against the Commission (paras. 86–87).
Transparency challenges in times of crisis
The Pfizergate controversy exposed critical vulnerabilities in the Union’s transparency framework. At its core, the case raised pressing constitutional questions about democratic control, executive accountability, and institutional integrity in times of emergency. [7] In the shadow of a global health crisis, the Union’s fundamental values, such as those codified in Article 2 TEU, including the rule of law and respect for democratic principles, faced a stress test of unprecedented scale.
The Commission’s classification of SMS exchanges between President von der Leyen and Pfizer CEO as “short-lived” and therefore unarchived did not constitute a neutral administrative act. Rather, it operated as an implicit act of institutional shielding, circumventing the legal duties imposed by Regulation (EC) No 1049/2001 and challenging the foundational principle of accountable governance inscribed in Articles 11(2) TEU and 15 TFEU. This move underscored a broader institutional tendency to exploit undefined legal concepts, such as “short-lived”, to evade documentation obligations, thereby exposing a normative lacuna prepared for political manipulation.
Articles 2(3) and 3(a) of Regulation 1049/2001 adopt a technologically neutral definition of “document,” stipulating that any content regardless of form or format concerning institutional responsibilities qualifies as a document if it is held by the institution. This necessarily encompasses SMS messages. Article 2(1) of Regulation 1049/2001 further establishes a presumptive right of access not only for Union citizens but also for all residents within the EU, reinforcing the breadth of this entitlement. The legislative framework thus affirms a broad and inclusive understanding of transparency, grounded in the idea of institutional custody.
Article 4(3) of the Regulation 1049/2001 permits institutions to refuse access only if disclosure would seriously undermine the decision-making process, and even then, only in the absence of an overriding public interest. Moreover, this exception is temporally constrained: it applies exclusively to internal documents prior to the decision being taken. In the Pfizergate context, the Commission failed to invoke any such exception or provide a substantiated justification, relying instead on vague assertions regarding the briefness and speculative nature of the messages. This omission contravened not only the substantive thresholds established by Article 4(3), but also the procedural obligation to give reasons, as mandated by Article 41 CFREU and Articles 7 and 8 of Regulation 1049/2001.
The GC rightly concluded that the Commission did not meet the burden of justification imposed by the Regulation. The institution offered no adequate explanation concerning its search methods, the devices consulted, or whether the requested communications had been deleted or retained. This omission violates the duty to provide reasoned decisions, and it subverts the architecture of transparency laid down in the Regulation itself, particularly the institutional duty to act in good administrative faith [cf. Article 1(c) of Regulation 1049/2001, and Article 41 CFREU].[8]
Beyond the procedural failures, the case illuminated a deeper normative tension: the structural friction between the principle of transparency and the exigencies of executive discretion during constitutional emergencies. The COVID-19 pandemic presented the Union with an unprecedented crisis requiring swift and centralised vaccine procurement to prevent a fractured response and ensure solidarity among Member States. In this unique context, the Commission acted not merely as a technocratic body but as a political executive negotiating under intense temporal and diplomatic pressure.[9]
This raises a normative question: what constitutes a “plausible explanation” within the meaning of procedural good administration, when the exigencies of emergency governance call for a degree of operational secrecy? When legal duties of openness collide with the discretionary imperatives of real-time diplomacy, the line between legitimate confidentiality and administrative evasion becomes blurred.
Excessive transparency, when elevated to an absolute, may paradoxically erode the very institutional trust and functional discretion that it is meant to guarantee. Access to preparatory documents without limits may discourage candid deliberation and constrain the flexibility required for sensitive political negotiations. The exceptions enumerated in Article 4(1) and 4(2) of Regulation 1049/2001 exist precisely to protect overriding public and private interests, such as international relations, commercial confidentiality, and institutional deliberation. These safeguards exist not to excuse opacity, but to ensure that the institutional machinery of the Union retains its functional capacity to pursue legitimate policy aims under conditions that demand discretion and agility.
Viewed in context, the Commission’s silence concerning its document retrieval methods, although insufficient under the standard of procedural good administration, may reflect not deliberate evasion, but the difficulty of reconciling legal obligations with the demands of high-level diplomacy conducted through informal channels. The Commission’s hesitance to confirm the existence of the messages may have aimed to prevent escalation of political tensions or to preserve confidentiality essential to ongoing international negotiations. Whether such justification could amount to a “seriously undermined decision-making process” under Article 4(3) of Regulation 1049/2001 is debatable, but it reflects the normative tension at the heart of EU transparency law.
Moreover, transparency cannot be detached from institutional trust. The possibility that hyper-transparency inhibits divergence of views and impairs the pursuit of the general interest should not be dismissed lightly.[10] The Union’s complex decision-making system relies on balancing national and supranational interests in a framework of loyal cooperation.[11] The indiscriminate exposure of sensitive deliberations risks destabilising this fragile institutional balance, potentially prompting Member States to adopt more insular and risk-averse negotiating strategies, thereby undermining the spirit of collective governance. Accordingly, legal obligations concerning access to documents must be interpreted with doctrinal nuance and contextual awareness, ensuring that transparency retains its function as a mechanism of democratic legitimation rather than becoming an instrument of procedural disruption or institutional vulnerability.[12]
Nevertheless, the GC’s ruling constitutes a decisive reaffirmation that institutional discretion, even under conditions of heightened political sensitivity, remains subordinate to the binding legal obligations enshrined in the Union’s constitutional order. Informal communications, including SMS and other ephemeral formats, cannot be categorically excluded from the scope of transparency obligations, particularly when they concern the negotiation and conclusion of high-stakes public procurement contracts of strategic and financial significance. As said before, when executive decisions involve multibillion-euro agreements, such as the Pfizer–BioNTech procurement, concluded under compressed timelines and intense diplomatic pressure, full transparency may paradoxically erode institutional effectiveness. The disclosure of informal preparatory exchanges, especially those involving senior institutional figures and private counterparts, risks impairing strategic flexibility, inhibiting candid deliberation, and deterring timely and decisive action. In this constitutional context, the pursuit of absolute transparency emerges not as a guarantee of democratic legitimacy, but as a potentially self-defeating ideal. The annulment of the Commission’s decision thus operates as a normative warning: the imperatives of crisis governance may shape institutional behaviour, but they cannot displace the primacy of legality, nor may procedural formalism be instrumentalised to conceal material opacity.
The lesson of Pfizergate is not the categorical affirmation of transparency, but rather a constitutional reminder of its necessary integration within a broader normative ecosystem. Transparency must indeed be safeguarded, but not absolutised. Treated as an unqualified imperative, it risks destabilising the very structures of institutional trust, strategic discretion, and decisional efficiency that underpin legitimate governance. It must coexist with other constitutional principles, including good administration, institutional autonomy, and the effectiveness of EU action. Only through a balanced and context-sensitive interpretation of these principles can the EU preserve both its democratic legitimacy and its operational capacity to respond to future crises. The Pfizergate judgment thus functions not merely as a vindication of access rights under Regulation 1049/2001, but as a critical inflection point in the evolving constitutional equilibrium between openness and functionality in Union governance.
Limits and gaps in the legal framework
Regulation (EC) No 1049/2001, enacted over two decades ago, presupposes a documentary culture shaped by traditional formats (official letters, internal memos, and formal minutes). It was not designed for a digital ecosystem where ephemeral communications, such as SMS, encrypted messaging apps, or voice notes, increasingly substitute formal bureaucratic channels. The case reveals that the legal framework’s static definitions, particularly the technologically neutral but operationally outdated conception of a “document” in Article 3(a) of Regulation 1049/2001, are insufficient for ensuring accountability in the face of evolving informal executive practices.
The absence of binding, institution-wide protocols on how digital and ephemeral communications should be classified, retained, or excluded has allowed discretion to drift into arbitrariness. Without clear registration thresholds and recordkeeping duties adapted to the digital environment, transparency ceases to be a legal obligation and becomes a political choice, subject to strategic manipulation. The failure to institutionalise technological neutrality beyond mere definitional terms undermines the rule of law in an increasingly digital administration.
More fundamentally, the case highlights the inadequacy of treating transparency as a procedural bolt-on to executive action, rather than as a principle embedded within the architecture of institutional design. The judgment reveals that current transparency obligations are often enforced ex post, once a denial is contested, rather than guiding institutional conduct ex ante through embedded compliance structures. This reactive model not only hampers effective oversight but renders the right of access contingent on litigation capacity, disproportionately disadvantaging civil society and journalists.
There is a pressing need to reconceptualise the relationship between transparency and executive discretion in the EU legal order. A layered transparency framework, differentiating types of information and levels of access, could enhance legal predictability while safeguarding confidential diplomacy. However, such a model requires doctrinal innovation and political will, neither of which are yet present in the Court’s jurisprudence.
Pfizergate calls for a constitutional moment in the law of transparency, one that aligns normative aspirations with institutional realities, and legal design with the technologies of governance. The task ahead is not to expand transparency unconditionally, but to structurally embed it in a resilient and context-sensitive legal system, capable of democratic governance in the digital age.
Rethinking transparency in the European Union
The Pfizergate judgment is emblematic of a broader constitutional struggle in the EU: how to reconcile the imperative of transparency with the operational needs of executive governance, particularly in times of crisis. While the GC reaffirmed the procedural obligations of the Commission under Regulation 1049/2001 and the principle of good administration in Article 41 CFREU, the decision left unresolved critical questions about the substantive limits of public access and the normative balance between openness and institutional autonomy.
Transparency is not an unqualified good. It is a principle embedded within a legal framework that necessarily accommodates competing interests, the integrity of decision-making, the confidentiality of sensitive negotiations, and the functional autonomy of institutions. The refusal of the Commission to invoke the permissible exceptions under Article 4(3) of Regulation 1049/2001, opting instead to deny the existence of the documents, signals a reluctance to engage transparently with the legal limits of transparency itself. This procedural strategy, though legally insufficient, reflects the political delicacy of the subject matter and the structural ambivalence within the institutional culture of the Commission.
The judgment also reveals a systemic lacuna: the absence of a robust and technologically updated regime for the classification, retention, and disclosure of informal communications, including SMS and instant messages exchanged by high-level officials. In a digital administrative space, the format-neutrality of “documents” must be more than a theoretical principle, it must be operationalised through binding internal protocols that guarantee legal certainty and institutional accountability.
Furthermore, the normative debate surrounding transparency in the EU cannot be decoupled from the political nature of its decision-making architecture. The Union’s institutions are tasked not only with defending European values but also with reconciling diverse national interests under intense public scrutiny. In this context, transparency must be interpreted not as an absolute imperative, but as a principle whose exercise requires legal precision, contextual sensitivity, and institutional maturity. As the judgment illustrates, excessive or ill-defined transparency may produce paradoxical effects, undermining public trust, strategic discretion, or even the very legitimacy it seeks to foster.
Ultimately, Pfizergate should be understood not merely as a case of institutional omission, but as a constitutional provocation, a moment that exposes the fragility of the EU’s regulatory design in balancing democratic ideals with administrative realism. The jurisprudence of the Court must now rise to the challenge of elaborating a more refined doctrine of transparency, one that integrates the procedural demands of access with the substantive logic of institutional protection. The future of transparency in the EU does not lie in its indiscriminate expansion, but in its careful, principled and pragmatic recalibration.
[1] See Alessandra Silveira, Larissa Araújo Coelho, Maria Inês Costa, Tiago Sérgio Alves Cabral, The Charter of Fundamental Rights of the European Union: A Commentary (Braga: JusGov/ UMinho Law School | Escola de Direito da Universidade do Minho, 2024), available at https://ssrn.com/abstract=4999183 or https://doi.org/10.2139/ssrn.4999183.
[2] Regulation (EC) No 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents, OJ L 145, May 31, 2001, 43–48.
[3] A detailed summary of the judgment, prepared in collaboration with the Portuguese judges and référendaires of the General Court, Maria José Costeira, Ricardo Silva Passos and Esperança Mealha, has already been published on this blog, providing the necessary factual and procedural background for the present critical analysis. See “Summaries of Judgments: Stevi and The New York Times v Commission”, The Official Blog of UNIO, 8 July 2025, https://officialblogofunio.com/2025/07/08/summaries-of-judgments-stevi-and-the-new-york-times-v-commission, accessed 8 July 2025.
[4] Judgment of the General Court (Grand Chamber), Stevi and The New York Times v Commission, 14 May 2025, T-36, /23 ECLI:EU:T:2025:483.
[5] Stevi and The New York Times v Commission, paras. 1-8.
[6] EURONEWS, “EU Commission loses on all counts in Pfizergate legal case”, May 14, 2025, https://www.euronews.com/my-europe/2025/05/14/eu-commission-loses-on-all-counts-in-pfizergate-legal-case, accessed on 19 June 2025.
[7] Elisa Braun and Mari Eccles, “Von der Leyen faces critical test as EU court decides on secret ‘Pfizergate’ texts”, POLITICO, 12 May 2025, https://www.politico.eu/article/von-der-leyen-critical-test-eu-court-decides-secret-pfizergate-texts/, accessed 19 June 2025.
[8], Sophie Perez Fernandes, “Administração Pública”, in Direito da União Europeia Elementos de Direito e Políticas da União, ed. Alessandra Silveira, Mariana Canotilho, Pedro Madeira Froufe (Coimbra: Almedina, 2016), 145.
[9] The EU4Health programme was adopted as a response to the COVID-19 pandemic and to reinforce crisis preparedness in the EU. For further details see Regulation (EU) 2021/522 of the European Parliament and of the Council of 24 March 2021 establishing a Programme for the Union’s action in the field of health (‘EU4Health Programme’) for the period 2021-2027, and repealing Regulation (EU) No 282/2014.
[10] Further developed by Ana Rodríguez-Hoyos, José Estrada-Jiménez, Luis Urquiza-Aguiar, Javier Parra-Arnau, Jordi Forné, “Digital hyper-transparency: leading e-government against privacy,” in 2018 International Conference on eDemocracy & eGovernment (ICEDEG), Ambato, Ecuador, 2018, 263-268, doi: 10.1109/ICEDEG.2018.8372369.
[11] Article 4(3) TEU. See Alessandra Silveira, Princípios de Direito da União Europeia: Doutrina e Jurisprudência (Lisbon: Quid Juris, 2021), 155.
[12] A concern raised by Alessandra Silveira during Estado da União, a radio programme of Antena Minho, Jornal Correio do Minho and CIED Minho, aired on 28 May 2025. Available at: https://www.youtube.com/watch?v=c-C4E7Z73mg&t=134s, accessed on 28 May 2025.
Picture credit: by Dušan Cvetanović on pexels.com.