On Wednesday, the European Court of Justice ruled that the Commission acted unlawfully in the case brought by the New York Times which wanted access to the text messages exchanged between Commission President Ursula von der Leyen and Pfizer CEO Albert Bourla regarding vaccine contracts in the Covid-19 pandemic.
According to the Court, the Commission cannot simply claim it does not hold the requested documents; it must provide credible explanations that enable both the public and the Court to understand why those documents cannot be located.
The European Commission isn’t the first institution that said it can’t provide text messages when asked by journalists, or lawmakers. Here are some other cases where the evidence simply vanished.
1. Nokia gate
Former Dutch Prime Minister Mark Rutte, who led the Netherlands’ governments in the period 2010 to 2024, for years deleted text messages from his phone, an old Nokia 301.
Rutte forwarded those that he considered relevant for archiving to civil servants, the rest he deleted on his own due to “too little storage space” on his phone, Dutch media found out in 2022.
Lawmakers called for a parliamentary debate on the basis that his job-related correspondence shouldn’t simply be destroyed.
In 2019, the Dutch Council of State decided that WhatsApp and text messages on both business and private phones of civil servants – if they are sent in the context of work – fall under the Government Information Act, which means that they can be part of freedom of information requests.
2. Antitrust evidence
Not keeping the records up to date can be expensive: in 2024, the Commission fined global company International Flavors & Fragrances Inc. and its French division together some €15.9 million for obstructing an inspection in 2023.
The Commission found that during the raid, a senior employee of IFF intentionally deleted WhatsApp messages exchanged with a competitor. This happened after the employee had been informed about the investigation. The EU executive said it considered the incident of “a very serious nature”.
Similarly, the Dutch antitrust regulator ACM imposed a fine of € 1.84 million on an unnamed company in 2019 for obstructing its investigation.
“Employees of the company that is under investigation for making anti-competitive agreements have left WhatsApp groups and deleted chats during a raid by the ACM. That is prohibited,” the watchdog said.
3. Scottish Covid Inquiry
Former Scottish First Minister Nicola Sturgeon, together with other senior ministers and health officials, deleted all their WhatsApp messages related to the Covid-19 pandemic, which emerged last year during a national Covid inquiry.
Sturgeon previously claimed that she was committed to “full transparency” about her conduct during the pandemic.
The inquiry had struggled to understand what the government’s policies were, because its replies to the inquiry’s requests for information, were incomplete or vague.
John Swinney – the country’s former deputy first minister – told the UK Covid inquiry, that he manually deleted messages sent to Sturgeon, which he claimed was in line with his understanding of Scottish government records policy.
Since entering the government in 2007 he had deleted material after it being placed on the official record of the government. An approach “that was never questioned in previous years”, he said.
4. German toll data
In 2020, German media reported that then Transport Minister Andreas Scheuer used private email addresses and phone numbers in negotiations on the controversial car toll rules in the country, which meant that the content was not stored in the official files of the Transport Ministry.
Freedom of information requests didn’t offer access to the data, because what is not stored on official files, does not have to be made public under German law.
Scheuer’s project was deemed illegal by the European Court of Justice in 2019, but he’d already concluded multi-million contracts before that. Operators were demanding damages of €560 million from the federal government.
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