Criminal complaint adds to Ursula von der Leyen’s Pfizer text woes

A glut of COVID-19 vaccine doses is keeping the EU-Pfizer contract firmly on the political agenda.

Another week, another attempt to get access to *those* text messages. And this time it’s personal.

While the prospects for the case are as-yet unclear, the lodging of a criminal complaint against Commission President Ursula von der Leyen by 35-year-old Belgian lobbyist Frédéric Baldan over undisclosed text messages adds to the clamour of voices calling for greater transparency over how the EU’s COVID-19 vaccine contracts were negotiated.

It was meant to be her crowning achievement: The Commission President swooping in to take decisive action at the height of the COVID-19 pandemic, rescuing the bloc in its hour of need. But pressure is mounting to reveal the extent of her personal role in the deal, which has left countries on the hook for millions of unneeded doses at a time when her name is increasingly being bandied about as a candidate for a second term as Commission President.

European lawmakers, national health ministers, journalists, the European budget watchdog, possibly the European prosecutor and now a Belgian lobbyist all want to find out more about what exactly was said in messages exchanged between von der Leyen and Pfizer Chief Executive Albert Bourla in the run up to a massive deal for up to 1.8 billion doses of BioNTech/Pfizer COVID-19 vaccine in the spring of 2021.

Legal jeopardy

First reported by Belgian outlet Le Vif, Baldan filed a criminal complaint in Belgium against von der Leyen on April 5 with a judge at the court of first instance in Liège. 

The filing comes in the wake of a case brought by the New York Timesagainst the European Commission in the European Court of Justice over access to the texts, which itself follows a finding of maladministration against the institution from the European Ombudsman for failure to search for the messages in response to a freedom of information request.

The case is “pretty unprecedented,” according to Alberto Alemanno, professor of EU law at HEC Paris. Alemanno, who has over 20 years of experience in European public affairs, said it’s the first time he’s witnessed a legal action addressed to an individual member of the Commission before national courts. 

“My first reaction — without, again, having read the briefs — is that this legal action is almost a provocation attempt at raising the visibility around the inability of the Commission to respond to the European ombudsman claims, and to add up to the pressure that the New York Times legal action brought before court,” Alemanno said.

Baldan, who runs a China-focused lobbying firm called CEBiz, told POLITICO that it was concerns over the state of the EU’s democracy that led him to file the criminal complaint, which includes charges of corruption and destruction of documents. 

“What we see now is that we had an institution out of control. What von der Leyen did was really damage the image of the European institutions in Brussels,” he said. He called his transparency campaigning a personal passion: “I don’t like expensive cars. It’s my one pleasure in life.”

Baldan said he is paying for the case out of his own pocket. He described himself as “politically neutral,” and said he doesn’t work for governments and is not currently engaged in work for Chinese clients.

The lawyer that represents him, Diane Protat, also represents a vaccine-skeptical French organization called BonSens, which has previously lobbied against the COVID-19 response. BonSens says it has also launched legal action in the U.S. and in France, the former to obtain the text messages and the latter aiming to nullify the COVID vaccine contracts between the EU and Pfizer. 

Alemanno believes that the legal grounds for Baldan’s case are shaky compared to that of the New York Times. 

“[The New York Times case is] more likely to be held admissible by court, as opposed to the second one, which sounds a bit more ambitious, and perhaps not necessarily legally well grounded,” he told POLITICO. 

Political pressure 

Outside the courts, questions around how the deal was negotiated are also getting louder, partly because EU countries are now stuck trying to get out of it.

The contract is for up to 1.8 billion doses, but it was only exercised partially, for 1.1 billion doses. Countries are due to receive about half of those this year. 

But reduced demand mean those paid-for doses risk going to waste. In January, public broadcaster BR24 estimated that 36.6 million doses expired unused just in Germany. In Bulgaria some 3 million doses have had to be thrown away. And in Austria, the country’s health minister said in March that 17.5 million were sitting in storage, unused. 

While negotiations are underway to revise the contract, Poland’s Health Minister, Adam Niedzielski, called on the European Commission to explain why it entered into a large COVID-19 vaccine contract that has left the bloc on the hook for millions of unused doses. A high-ranking Belgian diplomat raised similar concerns. 

Meanwhile, European lawmakers have also been trying to shine some light on the negotiations, unsuccessfully. 

Twice, Bourla refused to appear in front of MEPs in the European Parliament’s COVID-19 committee. A similar invite extended to von der Leyen also didn’t go anywhere, after European Parliament’s top bosses acted to shield the Commission President. 

EU watchdogs have fared no better. Ombudsman Emily O’Reilly said the Commission’s approach of failing to search for the messages “leaves the regrettable impression of an EU institution that is not forthcoming on matters of significant public interest.” The EU’s budget watchdog, the European Court of Auditors, also ran up against a wall of silence when it tried to learn more about the negotiations. 

But one institution investigating the contracts could, in theory, force the Commission President’s hand. The European Public Prosecutor’s Office — whose role is to investigate, prosecute and bring to judgment “crimes against the financial interests of the EU” — has an open investigation into the EU’s vaccine purchases. It hasn’t said if von der Leyen is being investigated, but given that EPPO cited the “extremely high public interest” in its announcement, it wouldn’t be surprising if it was looking into the high profile case.