Vaccine contracts, the Court of Justice rejects the EU Commission –

“The European Commission has not granted the public sufficiently broad access to the contracts for the purchase of vaccines once morest Covid-19. This infringement concerns in particular the clauses of these contracts relating to compensation and the declarations of absence of conflict of interest of the members of the negotiating team for the purchase of vaccines”. This was decided by the Court of Justice of the EU in its ruling on the action once morest the European Commission for the lack of access to contracts for the purchase of vaccines once morest Covid.

In 2020 and 2021, the Court of Luxembourg explains, contracts were concluded between the Commission and certain pharmaceutical companies for the purchase of vaccines once morest Covid-19: approximately 2.7 billion euros were quickly made available to place a firm order for over one billion doses of vaccine. In 2021, certain MEPs and certain private individuals requested, on the basis of the Regulation on access to documents, access to these contracts and certain documents relating to them in order to understand their terms and conditions and to ensure that the public interest was protected. Since the Commission granted only partial access to these documents, which were put online in redacted versions, the MEPs concerned and certain private individuals brought applications for annulment before the General Court of the European Union. In its judgments, the General Court partially upheld both 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 the Member States for any damages which they would have to pay in the event of a defect in their vaccines, the Court emphasised that the manufacturer is liable for the damage caused by a defect in his product and his liability cannot be abolished or limited, in relation to the injured party, by a clause exempting or limiting liability within the meaning of Directive 85/374. 2 It noted, however, that no provision in Directive 85/374 prohibited a third party from reimbursing the sums paid by way of compensation by a manufacturer because of the defect in his product. It recalled that the reason why the clauses relating to compensation were incorporated into the contracts, namely to compensate for the risks incurred by pharmaceutical companies in connection with the shortening of the time limit for the development of vaccines, had been endorsed by the Member States and was in the public domain. It finds that the Commission has not demonstrated that wider access to such clauses would actually have harmed the commercial interests of those undertakings.

Likewise, according to the Court, the Commission did not provide sufficient explanations to understand how access to the definitions of ‘malice’ and ‘all reasonable efforts’ in certain contracts and to the clauses of the contracts relating to donations and resales of vaccines might have concretely and effectively harmed those commercial interests. As regards the protection of individuals’ private life 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 concerned duly demonstrated the specific purpose of serving the public interest in disclosing the personal data of those members. Indeed, it is only in possession of their surnames, forenames and their professional or institutional role that they might have verified that the members in question were not in a situation of conflict of interest. Furthermore, the Commission did not take sufficiently into account all the relevant circumstances in order to properly weigh the interests at stake, linked to the absence of conflict of interests and a risk of harm to the privacy of the data subjects.