There European Commission failed to grant public ‘sufficiently broad’ access to Covid vaccine procurement contracts. This was established by the EU Court, in a ruling relating to lawsuits brought by MEPs and private citizens against the extensive omissions made by the Commission to the purchase contracts relating to the contracts.
The infringement concerns in particular the clauses of the contracts relating to compensation, as well as the declarations of absence of conflict of interest of the members of the negotiating team for the purchase of the drugs.
The contracts (Apa, Advanced Purchase Agreement) were signed between the Commission led by Ursula von der Leyen and some pharmaceutical companies: a total of 2.7 billion euros were made available for a firm order of 1 billion doses. In 2021, some MEPs and private citizens asked for access to the documents, on the basis of the regulation, to ensure that the public interest was protected. The executive granted partial access to the contracts, which were published in largely redacted versions, so MEPs and citizens filed appeals with the General Court. In its rulings, the General Court partially upheld the appeals and annulled the Commission’s decisions insofar as they contained “irregularities”.
As regards the clauses in the contracts relating to the compensation of pharmaceutical companies by Member States for possible damages in the event of a defect in the vaccines, the Court stressed that the manufacturer was “responsible” for the damage caused by a defect in his product and that his liability “cannot be abolished or limited”, vis-à-vis the injured party, by an exemption or limitation of liability clause. The Court noted that no provision in the Directive prohibited a third party from reimbursing the sums paid by way of compensation by a manufacturer because of a defective product. It also recalled that the reason why the clauses relating to compensation were integrated into the contracts, namely to compensate for the risks incurred by pharmaceutical companies in connection with the shortening of the deadline for developing the vaccines, had been endorsed by the Member States and was in the public domain.
For the Luxembourg judges, the Commission did not demonstrate that broader access to the clauses would actually harm the commercial interests of the companies. Furthermore, the Commission did not provide “sufficient” explanations, which would allow to understand how access to the definitions of “intent” and “all reasonable efforts” in certain contracts, and access to the clauses of the contracts relating to donations and resales of vaccines could harm, “concretely and effectively”, the commercial interests of the companies. As regards the protection of the private life of individuals, invoked by the Commission to partially deny access to the declarations of absence of conflict of interest of the members of the negotiating team for the purchase of vaccines, the Court considers that the private individuals have “duly demonstrated” the aim of serving the public interest. Indeed, the judges note, it is only in possession of their surnames, names and their professional or institutional role that the applicants could have verified the absence of conflict of interest. Furthermore, the Commission “did not take sufficiently into account” all the circumstances of the case, to properly weigh the interests at stake, linked to the absence of conflict of interests and a risk of harm to the private life of the persons involved.
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