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EUROPEAN COMMISSION Brussels, 28.7.2025 C(2025) 5429 final Ms Stevis-Gridneff DECISION OF THE EUROPEAN COMMISSION PURSUANT TO ARTICLE 11 OF THE DETAILED RULES FOR THE APPLICATION OF REGULATION (EC) No 1049/2001, ANNEXED TO THE RULES OF PROCEDURE OF THE COMMISSION¹ Subject: Your confirmatory application for access to documents under Regulation (EC) No 1049/2001 – EASE 2022/2678 Dear Ms Stevis-Gridneff, I refer to your note of 9 August 2022, registered on the same day, by which you lodged a confirmatory application in accordance with Article 7(2) of Regulation (EC) No 1049/2001 regarding public access to European Parliament, Council and Commission documents² (hereafter 'Regulation (EC) No 1049/2001'). 1. CONTEXT ON THE PRESENT DECISION 1. In your initial application of 11 May 2022, you requested access to: "All text messages between President Ursula von der Leyen and Albert Bourla, the chief executive of Pfizer, from January 1, 2021 to the present'. 2. By letter of 20 July 2021, the unit E.4 ‘Health, Education & Culture' of the Secretariat- General of the European Commission informed you that the European Commission does not hold any documents that would correspond to the description provided in your application. 3. In your confirmatory application of 9 August 2022, you requested a review of this position. You referred to the article entitled “How Europe Sealed a Pfizer Vaccine Deal With Texts and Calls", published on the New York Times on 28 April 2021, which reports that “for a month, Ms. von der Leyen had been exchanging texts and calls with Albert Bourla, the chief executive of Pfizer". 1 Commission Decision (EU) 2024/3080 of 4 December 2024 establishing the Rules of Procedure of the Commission and amending Decision C(2000) (OJ L, 2024/3080, 5.12.2024, http://data.europa.eu/eli/dec/2024/3080/oj). 3614 ELI: 2 OJ L145, 31.05.2001, p. 43. Commission européenne/Europese Commissie, 1049 Bruxelles/Brussel, BELGIQUE/BELGIË - Tel. +32 22991111

4. On 15 November 2022, the Commission adopted confirmatory decision C(2022)8371, which stated that "following the renewed, thorough search for the documents requested the European Commission does not hold any documents that would correspond to the description given in your application". In said decision, the Commission explained that, despite thorough searches, it was unable to identify in its records any such documents, while noting that text messages would have been registered if they contained important information, in accordance with the Commission's document registration rules. 5. On 25 January 2023, you brought an action for annulment against confirmatory decision C(2022)8371, bringing three pleas in law, essentially arguing that the contested decision: (i) was based on a too restrictive notion of 'document' in breach of Article 3(a) of Regulation 1049/2001 (first plea); (ii) misapplied the notion of ‘document held' set out in Article 2(3) of the same Regulation (second plea); and (iii) infringed the principle of good administration and the obligation to state reasons (third plea). 6. In its judgment of 14 May 2025 in Case T-36/23 Matina Stevi and The New York Times Company v Commission³, the General Court upheld the third plea in law and annulled the confirmatory decision C(2022)8371. The General Court concluded that the presumption of non-existence of the requested documents was rebutted, whereas the Commission was unable to provide any plausible explanation as to why it had not been able to find the requested documents. 7. In particular, the General Court found that: (i) ‘[the Commission] did not specify in the contested decision which types of searches had allegedly been carried out or which document storage locations might have been consulted' (paragraph 62); (ii) ‘[t]he Commission did not, however, indicate whether or not the requested text messages had been deleted' (paragraph 70); (iii) ‘the Commission did not confirm whether the mobile phone(s) made available to its President had been replaced since the submission of the application for access to documents or whether they had been replaced between the searches carried out following the initial application and the confirmatory application', nor 'whether or not the content of that new mobile phone corresponded to that of the old one' (paragraph 71); and (iv) ‘the Commission has not explained why it reached the conclusion that text messages exchanged between its President and the chief executive officer of the pharmaceutical company Pfizer in the context of the procurement of vaccines by that institution in connection with the COVID-19 pandemic had not been deemed to contain important information which was not short-lived or involving follow- up by it or one of its services, concerning a matter relating to the policies, activities and decisions falling within its remit' (paragraph 81). 8. Pursuant to Article 266 of the Treaty on the Functioning of the European Union, the Commission is required to take the necessary measures to comply with the above- mentioned judgment of the General Court. 3 Judgment of 14 May 2025, Matina Stevi and The New York Times Company v European Commission, T- 36/23, ECLI:EU:T:2025:483. 2

2. ASSESSMENT AND CONCLUSIONS UNDER REGULATION (EC) No 1049/2001 9. The Commission has reassessed your request of access to documents as set out in your confirmatory application of 9 August 2022 in light of the findings of the General Court in the above-mentioned judgment and of its conclusion following which the Commission did not explain in a plausible way why it has not found and does not hold the requested documents. 10. The Commission has carried out a new and exhaustive search for the documents corresponding to the description given in your request, namely ‘All text messages between President Ursula von der Leyen and Albert Bourla, the chief executive of Pfizer, from January 1, 2021 to the present'. 11. For the purpose of this search, the Secretariat-General cooperated very closely with the cabinet of the President of the Commission, but despite these renewed efforts no messages corresponding to the description given in your request could be found neither in the records management system of the Commission, nor in any other storage locations under the control of the cabinet. 12. In July 2025, the head of cabinet of the President looked up the corporate mobile phone currently in use by the President of the Commission. This included text messages and the messaging application 'Signal', which the President of the Commission uses in line with the recommendation in the 'Commission guidelines for acceptable use of public instant messaging applications' of 1 September 2019.4 The head of cabinet of the President of the Commission did not find any messages corresponding to the description given in your request. 13. In this respect, the head of cabinet of the President had already in summer 2021 looked up the corporate mobile phone at this time in use by the President of the Commission. Back then he has confirmed that Ms. Von der Leyen had exchanged text messages with Mr. Bourla in the period between January 2021 and mid-2021 and has ascertained that the sole aim of these text messages was to ensure the respective availability of the President of the Commission and of the CEO of Pfizer for subsequent calls in the context of the ongoing global Pandemic. Since the content of these text messages was short-lived and did not require any follow-up by the Commission and its services, at that time the cabinet of the President concluded that they do not fulfil the registration criteria set out in Article 7(1) of the Commission Decision (EU) 2021/21215. As a consequence, these text messages were not registered in the records management system of the Commission. This explains why no documents corresponding to the description given in your request could now be found in this system. This also explains why in July 2023, the head of cabinet of the President had confirmed in a note to the file, submitted to the General Court in case T-36/23, that the cabinet of the President does not hold any documents 4 Those guidelines are attached as Annex 1 to this decision. 5 Commission Decision (EU) 2021/2121 of 6 July 2020 on records management and archives (OJ 2021 L 340, p. 30). 3

which would fall within the scope of the applicant's request for access to public documents. 14. In addition, in accordance with the Commission corporate smartphone policy, the mobile phone used by the President of the Commission when she exchanged text messages with the CEO of Pfizer has been replaced several times since then, and lastly in the middle of the year 2024. The cabinet of the President has confirmed that part of the data from the old mobile phones - including text messages stored in that phone - were not transferred to the new device. The old phones were, as per normal practice, formatted and recycled. This also explains why no text messages from the respective exchange in 2021 can be found in the mobile phone currently in use by the President of the Commission. 15. On the basis of the more than plausible explanations given above, while not denying that an exchange of messages between the Commission President and the CEO of Pfizer once existed, the Secretariat-General concludes that the Commission does not hold any such documents. 16. According to Article 2(3) of the Regulation (EC) No 1049/2001, public access to documents is limited to 'documents held by an institution'. As stated by the Court of Justice of the European Union in the case C-491/15 P, Typke v Commission, access rights only apply to existing documents in the institution's possession and Regulation (EC) No 1049/2001 does not require an institution to create a document that does not exist. Requests that would require the Commission to create a new document, even if that document were based on information already appearing in existing documents held by it, do not fall under this regulation. 17. Since the Commission does not hold any documents corresponding to the description given in your request, it is not in a position to fulfil such request. 6 Judgment of the Court of Justice of 11 January 2017, Typke v Commission, C-491/15 P, EU:C:2017:5, paragraph 31. 4

3. MEANS OF REDRESS 18. I draw your attention to the options available for challenging this decision. You may institute proceedings against the Commission before the General Court or submit a complaint to the Ombudsman³. The conditions for doing so are laid down in Articles 263 and 228 of the Treaty on the Functioning of the European Union. Yours sincerely, For the Commission Ilze JUHANSONE Secretary-General CERTIFIED COPY For the Secretary-General Martine DEPREZ Director Decision-making & Collegiality EUROPEAN COMMISSION 7 For deadlines and other procedural requirements concerning the institution of proceedings at the General Court, please refer to the following page: http://curia.europa.eu/jcms/jcms/Jo2_7040/en/. 8 Any complaint to the Ombudsman must be made within two years of receiving the Commission's final position on the matter. The Ombudsman's online complaint form https://secure.ombudsman.europa.eu/en/atyourservice/secured/complaintform.faces. is available at: 5