The New York Times journalist Matina Stevi submitted an application under the Access to Documents Regulation for access to messages exchanged between the Commission president and Albert Bourla between 1 January 2021 and 11 May 2022.

The Commission rejected the application on the ground that it did not hold the documents covered by it.

Ms Stevi and The New York Times asked the General Court to annul the decision.

In a judgment handed down on Wednesday, the General Court upheld the action and annulled the Commission’s decision on the basis that it had failed to provide “any plausible explanation as to why it had not been able to find the requested documents”.

The court recalled that the purpose of the Access to Documents Regulation, formally known as Regulation (EC) No 1049/2001, is to give the fullest possible effect to the right of public access to documents held by the institutions. In principle, all documents of the institutions should be accessible to the public.

Where an institution states that a document does not exist in the context of an application for access, the non-existence of that document is presumed, in accordance with the presumption of veracity attaching to that statement.

However, that presumption may be rebutted on the basis of relevant and consistent evidence produced by the applicant, the court highlighted.

It noted that the Commission’s replies regarding the text messages requested throughout the procedure were based either on assumptions or on changing or imprecise information.

By contrast, Ms Stevi and The New York Times produced “relevant and consistent evidence” describing the existence of text message exchanges between Ms von der Leyen and Mr Bourla in the context of the procurement of vaccines during the Covid-19 pandemic.

Ms Stevi and The New York Times had therefore “succeeded in rebutting the presumption of non-existence and, consequently… of non-possession of the requested documents”, the court said.

Because of this, the Commission was “obliged, in accordance with the principle of transparency and the duty to act diligently which underpin the right of access to documents and require the EU administration to act with care and caution, to provide plausible explanations enabling the applicant for access — as well as the court — to understand why the requested documents could not be found”, the court said.

The Commission failed to explain in detail the type of searches that it carried out to find those documents or the identity of the places where those searches took place.

“Consequently, the explanations given by the Commission both in the contested decision and in the present proceedings as regards the searches carried out to find the requested documents do not suffice to provide a credible explanation of why those documents could not be found,” the court noted.

The Commission had also failed to sufficiently clarify whether the requested text messages were deleted and, if so, whether the deletion was done deliberately or automatically or whether Ms von der Leyen’s mobile phone had been replaced in the meantime, it added.

The court concluded that the Commission had failed to fulfil its obligations when processing the application for access to documents and thus breached the principle of good administration laid down in Article 41 of the Charter of Fundamental Rights of the European Union.

The contested decision was annulled and the Commission was ordered to pay legal costs for Ms Stevi and The New York Times.