EU: Insufficient Public Access to COVID-19 Vaccine Purchase Agreements

Aug 9, 2024 Benn-Ibler Rechtsanwälte

The European Commission only partially disclosed its COVID-19 vaccine purchase agreements concluded with certain vaccine manufacturers. In particular, the provisions on compensation in these contracts as well as the declarations on the absence of conflicts of interest have been kept under wraps.

In 2020 and 2021, the European Commission and pharmaceutical companies concluded agreements for the purchase of vaccines against Covid-19. In a relatively short period of time, around EUR 2.7 billion were released to order more than 1 billion doses of vaccine. In 2021, some Members of the European Parliament (MEPs) and private individuals requested access to these agreements and certain related documents under the Regulation on access to documents so that they could understand the terms of the agreements in order to ensure that public interest was protected. As the Commission granted only partial access to these documents, which were published online in redacted versions, the MEPs concerned and private individuals brought actions for annulment before the General Court of the European Union, seeking the annulment of an act of the European Commission as an institution of the European Union which was contrary to Union law.

The General Court has now partially upheld both actions and partially annulled the decisions of the Commission.

With regard to the provisions of those agreements concerning damages to be paid by the Member States to pharmaceutical companies for any damages which the manufacturers would have to pay in the event of their vaccines being defective, the General Court stated that a manufacturer is liable for any damage caused by a defect in their product. A manufacturer’s liability may not be limited or excluded vis-a-vis to the injured person by means of a clause limiting or excluding their liability. In any event, Directive 85/374 does not preclude a third party from reimbursing the damages which a manufacturer has paid as a result of their product being defective.

Press Release No. 113/24 on ECJ T-689/21 (17 July 2024)