Did European Commission chief Ursula von der Leyen delete text messages to hide how she struck a multi-billion-dollar deal with pharma giant Pfizer?

A Belgian activist claims she did, and with it committed a criminal act – now, a hearing at a Belgian court this afternoon is supposed to bring clarity on how to proceed with the case.

At the height of the coronavirus pandemic, in April 2021, the EU struggled to get the vaccinations it needed. This is when Commission President Ursula von der Leyen stepped in:  She claimed a key role in securing 1.8 billion doses of the Pfizer vaccine in direct exchanges with CEO Albert Bourla. According to  the New York Times, she acknowledged doing this in direct exchange with CEO Albert Bourla. These exchanges included calls and text messages, according to the Times. 

But the order – over four doses for each EU citizen – turned out to be overly ambitious. As the public health emergency waned, many countries asked Pfizer not to deliver according to the agreed schedule. 

Meanwhile, another case is also still pending. Journalists, including a Follow the Money reporter, asked for the messages von der Leyen exchanged with Bourla. The Commission rejected the requests, claiming that these were “short-lived” and therefore entirely exempt from public access. This fuelled speculation that von der Leyen has something to hide. The New York Times brought a case to the Court of Justice of the European Union, but it has yet to be heard.

1. What is today’s case about? 

Two months after the Times took the Commission to court, in April 2023, Brussels-based lobbyist Frédéric Baldan filed a criminal claim against von der Leyen, Bourla, Pfizer and vaccine developer BioNTech with an investigative judge in the Belgian city of Liège. Baldan claims to have suffered damages from alleged corruption, usurpation of public functions, conflict of private and public interest and destruction of administrative documents. If von der Leyen did not destroy the controversial messages, Baldan argues, she committed another offence by arbitrarily violating his constitutional right of access to documents. 

After the investigative judge, Frédéric Frenay, started an initial investigation, the European Public Prosecutor’s Office (EPPO) took over the case. The EPPO had separately started looking into the acquisition of COVID-19 vaccines in the EU in October 2022. 

2. Who is suing and why?

Five parties have joined Baldan in filing a complaint with judge Frenay: Poland and Hungary, two small political parties – Belgian party Vivant Ostbelgien and Les Patriotes from France – and another citizen not publicly named. 

That could change soon: The new Polish government, led by former EU Council President Donald Tusk, said in April that it wants to withdraw from the proceedings. 

And the EPPO is asking the court to remove several claimants because it argues they haven’t suffered direct consequences from the alleged crime, Baldan and another person close to the case said, and therefore don’t have the right to bring a case.

For the citizens and political parties it will be harder to argue that they were directly affected by the EU’s purchase of vaccines than for the member countries. Hungary is involved in a 56-million-euro court battle with Pfizer following the contract von der Leyen negotiated with Bourla, according to documents seen by Follow the Money. Poland and Romania were also sued by Pfizer, for 1.4 billion and 564 million euros, respectively.

Meanwhile, the EU’s General Court ruled in a separate case that the loss of confidence in EU institutions, which Baldan alleged to have suffered from the EU’s vaccine purchase “cannot constitute repairable moral damage”. 

3. Who has the power to investigate?

A conflict is brewing on whether the case should now be handled by Belgian or EU prosecutors.

The EPPO says it should be in charge as it deems the vaccine purchase affected “the financial interests of the EU” – and is asking the court to rule on how the case should move forward. But even if it gets the case, the EPPO does not seem to intend to move it forward. In its view, the claims are inadmissible, because they should have been filed with one of seven investigative judges who are attached to the EU prosecutors, not with investigative judge Frenay. 

Several claimants, including Baldan and Hungary are challenging the EPPO’s competence. They want Frenay to continue his work. “The EPPO does not have the power to handle this case, as the vaccines were bought with member state money,” Baldan told Follow the Money. 

4. What about the New York Times court case?

Ironically, vaccine sceptics have caused a major delay for the Times's bid to uncover text messages von der Leyen and Bourla exchanged. 

An average case at the General Court, the EU’s second highest court, takes 16 months to decide, so a ruling could have forced their release just ahead of the European Parliament elections next month.

But the quest for transparency hit an unexpected roadblock this fall when BonSens.org, a French vaccine-sceptic organisation, filed a motion to join the case. Following the Commission’s objection, the court initially ruled against the application. But BonSens.org wouldn’t take no for an answer – and brought its request to join the lawsuit to the bloc’s highest court, the European Court of Justice. It took several months, until January, for the ECJ to dismiss the appeal, allowing for the General Court to go ahead with the case. So far, no date for a hearing has been scheduled.

5. What will happen next?

Today, the “Council Chamber”, a specialised one-judge tribunal that oversees the Belgian investigation, is scheduled to hear the case behind closed doors.

After the hearing, it will take a few weeks before the chamber will decide whether the case should be dropped or further investigated, or whether the suspects, including von der Leyen, should be sent to the criminal court that deals with the question of guilt. The chamber could also rule on the competence of the EPPO, or refer that question to the European Court of Justice.

But not so fast: According to two people close to the case, it’s likely that the judge will decide to postpone the hearing after Hungary’s lawyers requested additional investigative measures in the run-up to the hearing.

If the case moves forward, prosecutors are likely to be confronted with von de Leyen’s immunity, which broadly protects her from legal proceedings if she acted in official capacity. The College of Commissioners, which is usually chaired by von der Leyen, would be handling requests from prosecutors to waive that immunity. Commission members usually don’t take part in decisions that concern them. The Commission has so far not received a request to lift von der Leyen’s immunity, a spokesperson said.

The European Public Prosecutor’s Office, the Court in Liège, and a lawyer representing Hungary declined to comment. Poland did not respond to requests for comment. 

But with the battle raging on about who can sue whom for what, it’s likely that voters won’t know more about the vaccine texts until after the European elections on 9 June, if ever – the cases could drag on for months, or even years to come.

This article was updated on 21.05.2024 at 10:36 to reflect Ursula von der Leyen's role in negotiating the agreement with Pfizer CEO Albert Bourla.