SMSgate – CJUE has no power to seize text messages or compel the Commission to produce text messages between von der Leyen and Bourla

Yesterday, the Court of Justice of the European Union held a hearing in the SMS case (#SMSGATE). These SMS messages were exchanged between Commission President Ursula von der Leyen and Pfizer President Albert Bourla regarding the negotiation of the incredible Covid vaccine contracts. "I have never seen contracts so favorable to the manufacturer," explained Olivier Frot, Phd law. Frédéric Baldan and his lawyer Diane Protat traveled to listen to this important hearing. They were left wanting more and came away even more convinced that criminal proceedings remain the only way to provide transparency on what really happened. Let us recall that Frédéric Baldan filed a complaint in March 2023 against Ursula von der Leyen, Albert Bourla and Pfizer on charges of usurpation of titles, destruction of documents and corruption. Complaint joined by Poland and Hungary, as revealed by France-Soir on March 17, 2023, as well as nearly 1,000 other plaintiffs. The next hearing in this procedure will take place on December 6, 2024 at the Court of Liège. With the additional questions, why such an omerta from the French mainstream media on the criminal complaint against von der Leyen and what murky games is the European Public Prosecutor's Office playing in this case?
 

Extensive direct coverage from France-Soir on X

The audience was covered by France-Soir on the social media X, reporting on the 4h 30 long hearing. Details may be read in  the thread below  :

Affaire de SMS entre @vonderleyen et @AlbertBourla demandé par le New York Times et Matina Stevis. L'audience se tient aujourd'hui à la Cour de justice de l'Union européenne. @france_soir est présent. L'audience a commencé à 9h30. pic.twitter.com/Tp4DA97p9c

— France-Soir (@france_soir) November 15, 2024

Despite the importance of the hearing, the french mainstream media were not present.

Interviewed after the hearing, Maître Diane Protat and Frédéric Baldan commented on the hearing: 

SMSGate audience summary Frédéric Baldan 

It was through a tweet that Frédéric Baldan summarized the #smsgate hearing of November 15, 2024. It is reproduced below with his agreement.

The CJEU has no power to seize the "SMS" or force the von der Leyen Commission to produce its secret messages exchanged with @AlbertBourla. It is @vonderleyen who seems to hold them alone and/or to have destroyed them.

The only jurisdiction capable of doing so is the Belgian criminal jurisdiction, the jurisdiction where the facts occurred. The Commission, which refuses to appear before the courts, tries not to affirm or deny that the messages exist, it refuses to specify the medium (which phone, computer?), it refuses to specify the format (Whatsapp, signal, text, ...), it claims to have looked for them, but without being able to specify where and how...

In short, the Commission is acting arbitrarily and dishonestly. Since the Secretariat-General of the @EU_Commission and the UVDL cabinet (led by Björn Seibert) claim that they do not have these messages, this means that only the President has them and that they have not been the subject of any effective search. Mrs von der Leyen is the only one who can consult them and she has organized the fact that her communications escape registration by the Commission and therefore transparency.

To protect its President, the von der Leyen Commission has invented a false legal concept of "short leave message" that would exempt her from the obligation to archive messages.

The only way to interpret it is that Mrs von der Leyen used an application that she had configured to delete her own messages after a short period of time. Since she claimed to act within the scope of her duties, this therefore means that she organized the destruction of administrative documents. What we are accusing her of criminally.

The Commission also came out with a new storytelling by arguing that Mrs von der Leyen's phone may have been replaced in 2022 without transferring the messages. For my part, I met a media professional who told me that Ursula von der Leyen had told her that her granddaughter had played with her phone and accidentally deleted her messages.

In short, Ursula von der Leyen and her subordinates have decided to lie and flee both transparency and justice. Even if the CJEU annuls the Commission's refusal to provide these messages, the NYT will clearly not obtain them, and the Commission will produce a new refusal decision that will again end up before the CJEU. An endless loop.

THE CONCLUSION TO BE DRAWN: Ursula von der Leyen has violated the code of conduct for European commissioners by violating in particular the EU Charter of Fundamental Rights (including the right to transparency). The only useful decision that the CJEU can take is the suspension of Ursula von der Leyen who has failed in her mission by violating the treaties and who no longer has any appearance of honesty.

We had requested her suspension in 2023, but the EU administrative jurisdiction had protected Ursula von der Leyen. Yesterday, they only repeated in their face the consequences of their decision contrary to the law of 2023. We will therefore see if, this time, the judges will finally state the law instead of protecting Ursula von der Leyen.

For the record, the NYT is not calling for Ursula von der Leyen's suspension and has not joined us in criminal proceedings, which they could have done by using Article 151 of the Belgian Penal Code (arbitrary infringement of rights guaranteed by the constitution).

L'AUDIENCE SMSGATE EN RÉSUMÉ

Le résumé de l'audience du #smsgate du 15 novembre 2024 : 

La CJUE n'a aucun pouvoir pour saisir les "SMS" ou contraindre la Commission von der Leyen à produire ses messages secrets échangés avec @AlbertBourla . C'est @vonderleyen qui semble les… pic.twitter.com/ufb71aIZRZ

— Frédéric BALDAN (@BaldanFrederic) November 16, 2024