European Court of Justice says that Pfizer is liable for damage if its covid vaccine is defective
On Wednesday, the European Court of Justice ruled that the European Commission was wrong to conceal details of its multi-billion euro deals for covid vaccines.
Ursula von der Leyen was already under scrutiny for allegedly keeping secret and deleting text messages with Pfizer CEO Albert Bourla over vaccine purchases in a controversy dubbed “Deletegate.” Wednesday’s court ruling is separate to that case.
Apart from the obvious negative impact this is likely to have on von der Leyen’s bid for a second term as the President of the European Commission, the Court also stated that Pfizer is liable for damages if its covid vaccine is defective.
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In October 2021, Green MEPs requested access to the covid vaccine contracts negotiated by the European Commission so that the terms and conditions of the agreements could be known.
According to the group, the decision to take the case to the High Court came after months of correspondence with the European Commission asking for transparent access to the contracts, to which the executive only provided heavily redacted versions.
Yesterday the European Court of Justice ruled that the Commission did not give sufficient access to the purchase agreements and considers that the executive’s decision to publish only redacted versions of the contracts contains irregularities.
As Politico reported:
Ursula von der Leyen’s bid for a second term as European Commission chief has been dealt a major blow after a top EU court ruled she was not transparent enough with the public about covid-19 vaccine contracts.
The General Court of the European Union ruled against the Commission’s decision to redact large parts of the contracts before making them available.
The General Court on Wednesday partially upheld the MEPs’ lawsuit and annulled the Commission’s decision to redact parts of the contracts.
It pushed against the Commission’s decision to conceal provisions on indemnification, arguing that the Commission failed to prove how those clauses would undermine the commercial interests of the pharmaceutical companies.
“The new European Commission must now adapt their handling of access to documents requests to be in line with today’s ruling,” [Tilly Metz, one of the Green MEPs who filed the lawsuit, said].
The Commission can appeal the ruling within two months and 10 days of the decision.
Von der Leyen loses court case in blow to her 2nd-term bid, Politico, 17 July 2024
Politico noted that other cases regarding the Pfizer contracts and communication between von der Leyen and Pfizer CEO Albert Bourla are also pending in different EU jurisdictions.
In 2023, a Belgian lobbyist, Frédéric Baldan, filed a complaint against von der Leyen personally, alleging that she and Bourla directly negotiated a €1.8 billion contract extension via text messages, undermining public trust and Belgium’s public finances. The Belgian authorities initiated the case in early 2023. Subsequently, the governments of Hungary and Poland joined the lawsuit.
In April 2024, Spot Media reported that the European Public Prosecutor’s Office (“EPPO”) – the EU’s anti-corruption agency – had in recent months taken over the Belgian prosecutors’ investigation into von der Leyen for “interference in public functions, deletion of text messages, corruption and conflict of interest.”
Before expanding to include specific concerns over the handling of vaccine orders by von der Leyen, the EEPO had already launched an investigation into the acquisition of covid vaccines across the European Union. The probe was confirmed in October 2022, amid “extremely high” public interest.
In May 2023, EPPO head Laura Codruța Kövesi hinted that the investigation had been expanded to involve activities relevant to the United States, potentially indicating a transatlantic angle to the inquiry.
Von der Leyen is no stranger to controversy surrounding the awarding of contracts. In 2020, she faced criticism over contracting practices during her tenure as Germany’s Defence Minister. She was accused of her department awarding lucrative contracts from the Defence Ministry to outside consultants without proper oversight.
A parliamentary committee report cleared her of direct responsibility, attributing mistakes to officials below her level. However, von der Leyen acknowledged “mistakes have been made” and expressed regret over the lack of oversight.
German Green Party MP Tobias Lindner said at the time that the government committee had done an “ultimately very simple” assessment of the findings. “A former state secretary and a retired general are being named as the sole responsible parties for the consultancy affair, so that an EU Commission president can act in Brussels with as few scratches as possible,” he said.
Read more: German governing parties clear von der Leyen in contract scandal, Politico, 9 June 2020
Pharmaceutical Companies Do Not Have Indemnity for a Defective Product
While corporate media have reported that the European Court of Justice had ruled against the Commission’s decision to redact large parts of the contracts, including provisions on indemnifications, none of the reports we looked at mentioned the Court’s ruling regarding the liability of pharmaceutical companies; not The Telegraph, not Phile News, not Politico, not Euractiv and not Euro News.
We have been told many times over the years that covid vaccine manufacturers have limited liability for vaccine-related injuries or deaths. According to the European Court of Justice, in the European Union, this is not entirely true.
In September 2020, the European Commission introduced indemnification for vaccine makers in cases of “unexpected side effects.” However, the European Court of Justice’s ruling on Wednesday stated that the liability of pharmaceutical companies cannot be limited if harm is caused by a defective product.
As regards the agreements’ provisions on the indemnification of the pharmaceutical undertakings by the Member States for any damages that those undertakings would have to pay in the event of their vaccines being defective, the General Court states that a producer is liable for the damage caused by a defect in its product and its liability cannot be limited or excluded vis-à-vis the victim by a clause limiting, or providing an exemption from, liability under Directive 85/374.
The General Court notes, however, that there is no provision in Directive 85/374 that prohibits a third party from reimbursing the damages which a producer has paid as a result of its product being defective. [Emphasis added]
The Commission did not give the public sufficiently wide access to the purchase agreements for covid-19 vaccines, Court of Justice of the European Union, 17 July 2024
That means, if Pfizer’s product is defective and people are harmed by that product, then the victims can seek damages from Pfizer. For any damages that Pfizer pays out, Pfizer can seek reimbursements from a third party, for example, BioNTech.
The press release then goes on to state what has been reported in corporate media; that the Commission failed to prove how the indemnification clauses would undermine the commercial interests and so could not redact them.
The General Court finds that the Commission did not demonstrate that wider access to those clauses would actually undermine the commercial interests of those undertakings.
Similarly, the Commission did not provide sufficient explanations as to how access to the definitions of ‘wilful misconduct’ or ‘best reasonable efforts’, in some of the agreements … could actually and specifically undermine those commercial interests.
The Commission did not give the public sufficiently wide access to the purchase agreements for covid-19 vaccines, Court of Justice of the European Union, 17 July 2024
That corporate media has reported on the second part while seemingly not noticing the first is curious – or perhaps not.
Are Pfizer’s Covid Injections Defective?
The European Court of Justice referred to Directive 85/374 to rule that “a producer is liable for the damage caused by a defect in its product.”
The Directive defines “producer “ as “the manufacturer of a finished product, the producer of any raw material or the manufacturer of a component part and any person who, by putting his name, trade mark or other distinguishing feature on the product presents himself as its producer” as well as any person who imports a product for sale or any form of distribution in the European Community in the course of his business (Article 3).
The definition of damage includes “damage caused by death or by personal injuries” (Article 9).
The covid vaccines have caused death and personal injury. So, are they defective? The public has been told continuously and repeatedly for more than 3.5 years that the covid vaccines are “safe and effective,” albeit varying degrees of effectiveness as time progressed. Here’s what the Directive states about a defective product:
… to protect the physical well-being and property of the consumer, the defectiveness of the product should be determined by reference not to its fitness for use but to the lack of the safety which the public at large is entitled to expect; whereas the safety is assessed by excluding any misuse of the product not reasonable under the circumstances. [Emphasis added]
The covid vaccines lack the safety that the public is entitled to expect. It would seem that according to the European Court of Justice’s ruling on Wednesday, Pfizer’s covid product is defective and Pfizer is liable for the deaths and injuries it has caused.
