Action brought on 10 November 2023 – Shopper Union France and Azalbert v Commission

(Case T-1071/23)

Language of the case: French

Parties

Applicants: Shopper Union France (Paris, France) and Xavier Azalbert (Garches, France) (represented by: D. Protat, lawyer)

Defendant: European Commission

Form of order sought

The applicants claim that the Court should:

annul the implied decision of the European Commission refusing to grant them access to certain documents, in particular all the contracts for the purchase of vaccines against COVID-19 concluded by the Commission with the pharmaceutical companies Pfizer-BioNTech, Moderna and Janssen, which were not redacted.

Pleas in law and main arguments

In support of the action, the applicants rely on five pleas in law.

First plea in law, alleging the inapplicability of the exception relating to the protection of privacy. The applicants claim that the personal data of the persons who participated in the joint team responsible for negotiating contracts with vaccine manufacturers, entrusted with a public mandate or at least a public service mission, are not likely to allow their political opinions, religious or philosophical beliefs or trade union membership to be revealed. There is therefore no reason to believe that disclosure of the personal data concerned would adversely affect the legitimate interests of the data subjects.

Second plea in law, alleging the inapplicability of the exception relating to the protection of commercial interests of undertakings. According to the applicants, the Commission does not claim that it would be liable to pay contractual penalties towards its pharmaceutical undertaking co-contractors if, despite the disputed confidentiality clause, it were to reveal the terms of the contracts. Consequently, the trade secret exception cannot be applied.

Third plea in law, alleging the overriding interest justifying access to the documents requested. The applicants claim that several reasons relating in particular to the context in which the contracts relating to the COVID-19 pandemic were concluded, the purpose of those contracts, which is to comply a task of general interest relating to the heath of the population living in the Union, and the monopoly of the Union and the Member States concerning the acquisition and the distribution of vaccines, establish the existence of a public interest of the Union and its citizens above the private interests of the pharmaceutical companies concerned.

Fourth plea in law, alleging that the disputed confidentiality clause amounts to an abuse of rights. The applicants claim that the Commission does not have the right to rely on the disputed confidentiality clause in order to refuse to accede to their requests as this amounts to ‘destroying’ or at least ‘limiting’ a right contained in the Charter of Fundamental Rights of the European Union (‘the Charter’), that of transparency, and therefore committing an abuse of rights prohibited by Article 54 of the Charter.

Fifth plea in law, alleging the fraudulent nature of the objections raised by the Commission in its refusal to communicate the documents requested. The applicants claim that two criminal investigations are under way regarding the conditions under which the Commission and Pfizer Inc. concluded contracts for the purchase of vaccines against COVID-19. Thus, the objections raised by the Commission to refuse access to the documents are intended solely to protect its members.

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