Every month the European Commission deletes several thousand emails and SMS, WhatsApp messages are not archived at all. Now Commission President Ursula von der Leyen is again faced with uncomfortable questions about allegedly deleted SMS. One expert describes the practices as legally « questionable ».
What Martijn Nouwen asked for touched one of the best-kept secrets in the European Union. The Dutch legal scholar wanted access to all documents – minutes of meetings, working papers, spreadsheets and emails – about how the member states of the European Union implement and monitor multi-million euro tax agreements with international corporations.
Nouwen’s tool: EU- Regulation No. 1049/2001. It guarantees EU citizens « extensive access » to all documents held by the European Commission, the European Parliament and the Council of Member States – in the simplest possible way. Unless there are important reasons for the secrecy of such documents, such as public safety or the protection of private data.
However, what happened after Nouwen submitted his application was anything but « extensive access ». Instead, he came to the conclusion that the Commission is simply deleting huge amounts of emails and other documents that are more than six months old. The commission essentially decides for itself what information is stored and what is allowed to reach the public – according to questionable criteria.
According to these criteria, text messages and other instant messages are roughly categorized as not intended for public consumption. In the Commission’s view, they are essentially “short-lived” and therefore cannot be saved.
When Nouwen submitted his application, he assumed that hundreds of documents would fall within its scope. From the Commission’s point of view, however, there were exactly three. And after a review, the EU executive told Nouwen they could only send him one.
Nouwen had hoped to find documents on « extended price agreements, » tax rulings, which is one of the preferred methods used by countries like Luxembourg, Ireland and Malta are used to attract multinational companies with low tax rates. But in her 34-page correspondence with Nouwen, the European Commission claimed not to have a single email on the subject.
The President of the European Commission, Ursula von der Leyen, faces a new controversy over missing SMS .
According to internal rules, the Commission staff must upload documents to an electronic register called Ares, but only those that contain « important information » and are not « short-lived ». Anything that is not uploaded to this register or saved in a personnel file falls victim to an automated system of « immediate mass deletion » that has been in operation since July 2015 after six months.
When asked, the Commission could not even make an estimate how many documents have finally disappeared since then. In October alone, Commission staff received nearly 75 million emails, according to the Commission. A spokeswoman could not say how many of them were deleted. However, given the total, that number should run into at least the thousands.
It seems likely that some important documents could be among them. For example, a journalist recently called for text messages to be released between Commission President Ursula von der Leyen and Albert Bourla, CEO of the pharmaceutical company Pfizer. According to a report in the New York Times, the two had been in frequent phone and text contact for over a month while trying to close a deal announced in May to purchase 1.8 billion doses of the coronavirus vaccine.
The However, the Commission has stated that it has not received these communications at all. Texts and other short messages are « by their nature a short-lived document, which in principle does not contain any important information on questions of policy, activities and decisions of the Commission, » wrote Commission Secretary General Ilze Juhansone. In this regard, « the Commission’s recording policy would rule out instant messaging in principle ». That means, if the commission wants to keep something in the dark, they can simply use WhatsApp.
The question of whether von der Leyens messages to Bourla have been deleted, whether they still exist or whether the commission simply doesn’t know, was answered by the Don’t speak. And this principle still applies today, confirmed a commission spokesman when asked by SPIEGEL and its international partners. Because « there are no technical means to capture text messages, » said the spokesman. However, in its rules of procedure adopted in 2015, the Commission itself states that important texts and similar messages should be copied into a post or registered in some other way.
It is at least questionable whether the Commission’s approach in this regard is lawful. According to EU rules, with a few exceptions, it must make available all documents in its possession that relate to « policies, measures or decisions » in its area of responsibility – and not just the things that are in the Ares database. as Nouwen emphasizes.
The Berlin European law expert Alexander Thiele is also critical of the Commission’s arguments. « The general denial of the political or legal relevance of SMS is, in my opinion, legally more than questionable, » says the lawyer. Thiele adds that it is also questionable whether the automatic deletion of unregistered e-mails is permissible. It would not make sense to enter everything in the database, but internal rules should not undermine the regulation on access to documents. In fact, this regulation suggests a different approach: « General registration, unless the messages are actively moved to a private folder, » says Thiele.
It is a problem that of course extends beyond the Commission. The fact that, despite many years of work by the Code of Conduct Group on tax loopholes and other issues, little has come to light, primarily due to the EU member states. They even circumvented a ruling by the European Court of Justice, which ordered the European Council in 2011 to disclose the negotiating positions of individual member states.
« You would have thought: Game over, » says EU Ombudsman Emily O’Reilly. But then the Council just stopped recording the positions of the Member States. « If you don’t have a document that says Ireland said this and Germany said so, » says O’Reilly, « you cannot release it. » from the European Commission on the work of the Code of Conduct group, including many of the questionable upfront pricing agreements. But many other documents – such as e-mails that Nouwen knows exist because other documents refer to them – could no longer be found, according to the Commission.
The European Court of Justice would ultimately have to decide whether this is illegal. However, no measures are currently pending there. The commission says their practices have never been challenged in court.
Still, von der Leyen could find it uncomfortable. For one thing, it is not the first time that the head of the commission has gotten into hot water because of the disappearance of text messages. At the end of 2019, it emerged that text messages had been deleted from two of the official cell phones she used during her time as Federal Defense Minister, which led to a criminal complaint against von der Leyen and anger with an investigative committee in the German Bundestag that demanded the text messages as proof.
Now von der Leyen is faced again with an official control. Her office’s response to the SMS between the Commissioner and Pfizer CEO Bourla prompted a complaint to be lodged with EU Ombudswoman Emily O’Reilly.
A recent meeting between O’Reilly staff and Commission officials took place . O’Reilly is expected to publish a report on this next week. The Irish woman had already written to the Commission and seven other EU institutions in July asking how they deal with documents, in particular chat messaging services such as WhatsApp. The deadline for replies ends this Monday.
Whether the investigations will ultimately have any effect is questionable – because it would not be the first time that an SMS from an EU leader disappeared without consequences.
End of 2019 The then EU Council President Donald Tusk submitted an application for the release of cell phone SMS and other messenger texts. His staff also replied that they no longer had the news. O’Reilly received a complaint, but ultimately found no evidence of maladministration. The ombudswoman says she must assume that the European Council did not actually have a text message from Tusk. Ultimately, the complainants could not convince them otherwise.
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The President of the European Commission, Ursula von der Leyen, faces a new controversy about missing SMS.
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