Dear Council of the European Union,

Under the right of access to documents in the EU treaties, as developed in Regulation 1049/2001, I hereby seek access to:

1. the Article 255 Panel’s opinions regarding the two judicial candidates nominated for the CJEU (that is General Court and Court of Justice) by the Portuguese government in 2023, 2024 and 2025, as well as any minutes, audio, and video recordings pertaining to the candidates’ hearings;

2. all communications and exchanges between the Portuguese government and the Council and between the Article 255 Panel and the Council, before and after the Article 255 Panel’s interviews, including minutes and exchanges among the members of the Council, the Representatives of the Governments of the Member States, and the Article 255 Panel in connection to the Panel's decisions concerning the two Portuguese candidates;

3. the national file of the candidates considered by the Portuguese Government to become members of the CJEU (that is General Court and Court of Justice), containing inter alia the CV of the candidates, their public hearing before the national parliament (any minutes, audio, and video recordings pertaining to the candidates’ hearings), the vote cast on their nomination and any other documents regarding the national selection process and in possession of the Council.

Yours faithfully,
Alberto Alemanno
Rue du Commerce 72
B-1000 Bruxelles
Belgium

General Secretariat of the Council of the European Union
DG F – Communication
Rue de la Loi 175
B-1048 Brussels

Dear Sir/Madam,

Object: Council General Secretariat Ref. No. Ref. 25/0444

Confirmatory application for access to Council documents introduced on 12 February 2025 regarding the activity of the panel established by Article 255 TFEU.

Pursuant to Article 7(2) of Regulation (EC) 1049/2001, and having been partially refused our request for access to documents, we hereby submit a confirmatory application for access to Council documents in response to your refusal to grant these documents dated 31 March 2025.

Under the right of access to documents in the EU Treaties, as enshrined in Regulation (EC) 1049/2001, we submitted our original application in order to request access to the Article 255 Panel’s opinions regarding the two judicial candidates nominated for the CJEU (that is, the General Court and Court of Justice) by the Portuguese government in 2023, 2024 and 2025 and relevant documentation in both the EU and national relevant files.

Since the Council has partially refused our original request, we now file this confirmatory application pursuant to Section 2 of that Article. Specifically, we reaffirm our right of access to documents in the EU Treaties and hereby request access to the following documents:

--> the Article 255 Panel’s opinions regarding the two judicial candidates nominated for the CJEU by the Portuguese government in 2023, 2024 and 2025, as well as any minutes, audio, and video recordings pertaining to the candidates’ hearings.

Arguments

The General Secretariat of the Council (hereinafter, GSC) considers that the requested documents fall within the remit of the exceptions relating to the protection of the public interest as regards the privacy and the integrity of the individual (Article 4(1)(b) of Regulation (EC) No 1049/2001), the protection of the decision-making process (Article 4(3) of Regulation (EC) No 1049/2001) and the protection of commercial interests (first indent of Article 4(2) of Regulation (EC) No 1049/2001).

We believe that this is not the correct application of Regulation 1049 for the following reasons:

A. Candidates’ privacy interest is not protected by non-disclosure of Panel Opinions (exception contained in Article 4 (1) let. b))
B. Disclosure of the Panel Opinions would not jeopardize the candidates’ commercial interests ((exception contained in Article 4 (2))
C. Reference to the European Ombudsman decision in case 1955/2017/THH does not carry legal value and can’t be used in support of the Council’s rejection

A. Candidates’ privacy interest is not protected by non-disclosure of Panel Opinions (exception contained in Article 4 (1) let. b))

Regarding the statement in the 31 March 2025 rejection letter that granting us access to these opinions would undermine the protection of the privacy and integrity of the candidates in view of the personal data contained in the panel’s opinion, we would like to submit that:

1. According to settled case-law, the exceptions to access to documents must be interpreted and applied strictly so as not to frustrate application of the general principle that the public should be given the widest possible access to documents held by the institutions (Case C 64/05 P Sweden v Commission [2007] ECR I 11389, paragraph 66; Joined Cases C 39/05 P and C 52/05 P Sweden and Turco v Council [2008] ECR I 4723, paragraph 36; and Joined Cases T 391/03 and T 70/04 Franchet and Byk v Commission [2006] ECR II 2023, paragraph 84). Furthermore, the principle of proportionality requires that derogations remain within the limits of what is appropriate and necessary for achieving the aim in view (Case T 471/08 Toland v Parliament [2011] ECR II 0000, paragraph 28).

2. Moreover, the examination required for the processing of a request for access to documents must be specific in nature. First, the mere fact that a document concerns an interest protected by an exception is not of itself sufficient to justify application of that exception. In principle, such an application can be justified only if the institution has previously determined that access to the document would specifically and actually undermine the protected interest. Second, the risk of the protected interest being undermined must be reasonably foreseeable and not purely hypothetical (Toland v Parliament, paragraph 29). That examination must be apparent from the reasons for the decision (Case T-2/03 Verein für Konsumenteninformation v Commission [2005] ECR II-1121, paragraph 69; Franchet and Byk v Commission, paragraph 115; and Toland v Parliament, paragraph 29). Therefore, if the Council decides to refuse access to a document which it has been asked to disclose, it must explain how access to that document could specifically and effectively undermine the interest protected by an exception laid down in Article 4(1)(b) of Regulation No 1049/2001 (see, to that effect, Sweden and Turco v Council, paragraph 49). Such an explanation cannot therefore consist of a mere assertion that – as it is the Council has done in its contested decision– access to certain documents – in this case the two opinions prepared by the 255 panel on the two Portuguese candidates – would undermine privacy within the meaning of Article 4(1)(b) of Regulation No 1049/2001.

3. Even assuming that all information contained in the opinion must be qualified as “personal data” as defined by European legislation (Regulation (EU) 2018/1725), we argue that, in accordance with Article 9 of Regulation (EU) 2018/1725, personal data must be transmitted if the applicant shows that the transfer of the requested personal data is necessary – including for the performance of a task carried out in the public interest – and if it is proportionate to that objective.

4. To justify the necessity of the transfer of personal data under Art 9 EU DPR, it is submitted that:

a. In the present case, the public interest arises from – and is linked to – the public debate prompted by unprecedented, EU-wide and intense public coverage and political contestation around the two specific 255 opinions of candidates as witnessed in EU media, national media, and specialised media.
b. Given that the designation of the candidate(s) by the Portuguese government was public and announced in the media, their non-confirmation automatically suggested that something went wrong. In other words, it is easy to deduce from the current selection system whether any candidate has received a favourable or unfavourable opinion. Therefore, since the current policy of non disclosure of the opinion only succeeds in protecting why but not whom has received an unfavourable opinion, it fails to ensure the respect of the reputation of the candidates.
c. Against this backdrop, it is in the public interest to know what is the content of the opinion about the candidate(s). This conclusion finds support in the preamble to Regulation (EU) 2018/1725 that explicitly recognises that, “The specific purpose in the public interest could relate to the transparency of Union institutions”.

Yet, the Council considers that the disclosure of the requested personal data would inevitably cause harm to the reputation of the candidates and therefore would prejudice their legitimate interests. As highlighted above and documented by the media, it is the absence of disclosure – not the actual disclosure - of the opinion of the candidates, whose identity has widely been reported, that causes harm to the reputation of the candidates and therefore prejudices their legitimate interests. The media have reported that the two opinions in questions were negative , thus alluding to the possibility that the candidates lack the qualifications necessary to appear suitable for the job. Yet by refusing to disclose the opinions, the public as well as the candidates themselves are deprived of the possibility to understand the reasons leading the panel to a negative conclusion. Hiding behind alleged reputational repercussions overlooks the fact that a candidate’s integrity—and therefore his (and the Panel’s) legitimacy—is likely to be affirmed by disclosing the reasons for which the Panel supported or rejected his appointment to the CJEU.

In any event, the Council systematically took the view that the public should not have access to documents revealing the identity and suitability assessment of the Portuguese candidate(s) but failed to verify whether the risk of the protected interest being undermined was reasonably foreseeable and not purely hypothetical.

By simply relying on the risk of harm to the reputation of the candidates – and prejudice to their legitimate interests -, the Council failed to show to what extent the disclosure of the opinions containing the names of the Portuguese candidates would “specifically and effectively undermine their right to privacy” (by analogy, T-190/10 - Egan and Hackett v Parliament, paras 93-95), even though the applicants seek access to opinions which were compiled in the context of professional life and in the public interest. Moreover, as we have previously pointed out, this confirmatory request seeks access to opinions whose contents have – amid unprecedented media coverage – previously been made available to the public.

Yet, by not acknowledging and examining these specific circumstances, – despite by required to do so under the applicable legal standard – the Council failed to prove that “there is a risk of a specific and actual adverse effect on the interest protected” (see by analogy C-615/13 P - ClientEarth and PAN Europe v EFSA, paras 69-70).

Should the Council had embarked on such an in concreto analysis, it would have concluded that it is the absence of disclosure – not the disclosure – of personal data that, for the reasons that are set out above, risks compromising the effective selection of suitable candidates for the posts of Judges and Advocates-General and undermine, rather than pursue, the objective of ensuring the public’s trust in the EU judicial system.

B. Disclosure of the Panel Opinions would not jeopardize the candidates’ commercial interests ((exception contained in Article 4 (2))

The Council argues that full disclosure of the requested documents could undermine the protection of the candidates’ commercial interests, if the candidates were to carry out paid work as lawyers or legal advisers.

This suggests that the integrity of the candidates could be put at stake should their opinions be rendered public and this even in case of subsequent appointment of the candidate in question, quod non in the present circumstances.

This argument, as reflected in the negative language used by the Council, does not appear convincing, as the Council fails to explain how disclosure of the requested documents could “undermine the protection of the candidates’ commercial interests”.
In any event, the argument does not hold when considered against the backdrop of the current two opinions which – in the absence of their publication – have become the object of unprecedented media coverage and fuelled speculation that has damaged – not protected – the alleged candidates’ commercial interests. This hints to the fact that the current confidentiality policy does not only fall short of protecting the candidates’ reputation but – by denying access to the reasons leading to the panels’ opinions – also threatens it, as it does threaten the legitimacy of the panel itself. .

Let us unpack the alleged reputational effects stemming from the current non-disclosure policy of the committee’s opinions. First, while the reasons leading to an unfavourable opinion remain confidential (as this document is not proactively published), both the identity of the candidate and the outcome of the panels’ opinion are publicly known. As previously illustrated, the designation of the candidate(s) by the Portuguese governments being public and announced in the media, their non-confirmation automatically suggests that something went wrong. In other words, it is easy to infer from the current selection system whether a given candidate has received a favourable or unfavourable opinion. Therefore, since the current policy only succeeds in protecting why but not whom has received an unfavourable opinion, it fails to ensure the respect of the reputation of the candidates, who – as illustrated by the present circumstances – have not opportunity to defend their reputation when returning to their current position (that of a member of a Supreme court in the case of one of the two candidates).

Second, as the first decade of operation of the panel has shown, a situation in which – like the present one – the identity of the candidate who failed is widely known (and reported by the media) but not the reasons that led to that conclusion lends itself to gossip, as witnessed by multiple media articles in Portugal, EU media as well as social media and blogosphere. By preventing the public from knowing for what reasons a particular candid
ate has failed to receive a favourable assessment by the panel, the actual confidentiality policy is prone to speculation, chattering, and manipulation. Virtually every observer belonging to the EU legal epistemic community – who is by nature the most merciless in judging the candidate and prone to speculating about the reasons for her/his failure – is currently aware of the outcome and presumed reasons that have led to these two (negative) opinions. One may therefore contend that the current policy seems more effective in protecting the panels’ operation from public scrutiny than the candidates’ reputation.

As I had the chance to argue over the past decade in scholarly writings and previous requests and complaints to the EU Ombudsman, the legitimacy of a judge increases, rather than decreases, if the public is aware of the reasons that judge was appointed or not, disclosing the opinion of the panels would increase the perception of personal integrity of the judge and, as a result, of the jurisdiction to which she belongs to. This increases the democratic legitimacy of the courts and does not necessarily harm – but rather protect – the rejected candidate. It has thus been shown that, in countries in which judicial candidates for the highest court are confirmed by a public hearing (such as the United States, but also several Member States’ jurisdictions), disclosing the reasons for which a candidate was confirmed or rejected can increase both the independence and legitimacy of a court in the eyes of the public, without harming the reputation of rejected candidates, who were largely rejected based on legitimate factors such as partisanship, political philosophy, or insufficient experience. This is in keeping with the fact that judges are beholden to internal and external pressures and that they must maintain a strong judicial reputation within the judiciary and outside of it, and it has been shown repeatedly that both internal and external pressures are vital to the functioning and overall reputation of courts.

Finally, when considering the inevitable repercussions stemming from a negative opinion on the candidate’s reputation, we should not forget the limited scope and intensity of the review exercised by both panels upon the choice of the candidates. As stated by Jean-Marc Sauvé in an academic contribution to an edited volume discussing judicial appointments, in case of unfavourable opinion motivated by limited expertise, ‘similar lack of knowledge undermines in no way the ability of the candidates to hold their office, often a prominent one, on the national level; it is just does not recommend them, in the eyes of the Panel, to be appointed to the office for which they applied’

Last but not least, the lack of transparency around the panel’s motivation behind its opinion also threatens their legitimacy vis-à-vis the specialised legal community, and beyond that. Paradoxically, it affects the reputation of the committee’s members who are instead committed to protect that of the candidates they have negatively assessed.

The final, related argument that the Council’s decision of 31 March 2025 invokes to justify the policy of limited disclosure pursued by both panels has to do with the concern that publicity would discourage further candidatures for the judicial jobs. It is believed that more openness might lead to a domino effect whereby potential candidates would be dissuaded from allowing their name to go forward.

Yet while the Council is not required to establish the existence of a “definite risk” of discouraging prospective candidates to the post of member of the CJEU, it still expected – under the threshold of the exceptions under Regulation 1049/2001 to prove “the existence of a reasonably foreseeable and not purely hypothetical risk” (see, e.g., Agrofert C-477/10 p.79; Bronckers T-166/19 p. 60) .

Moreover – as argued above - due to the limited confidentiality ensured by the current system, some risk of chilling effect already exists. This dynamic is at play in the present case where the absence of publicity of the two panel opinions has not only fuelled speculation about the reasons leading those candidates not to have been confirmed but also prevented them from protecting their reputation, which appears in tatters as a result of the former.

Furthermore, any form of ‘quality review’ whose mission is to exercise external scrutiny on governmental choice may produce some chilling effect on candidates. This appears all the more so if such a review process is fully untransparent and unpredictable as what is currently performed by the 255 committee, in particular when it comes to the suitability requirements employed by the panel when exercising its review.

Over 20 years ago, the former President of the General Court of the EU contended that the procedure as it is already threatens to put off prospective candidates, who may either fear a negative result or believe the whole scheme violates their dignity.

This scenario is at play right now. At least two candidates to the CJ, whose identity and track-recorded is well known and is widely recognised as complying with the Treaty requirements, appear to have received an unfavourable opinion. And yet none of them – only their respective governments – have received that opinion, which one might expect to provide the reasons behind such a decision.

In these circumstances, all the arguments that have traditionally been invoked – as they have been in the contested decision of 31 March 2025 – to justify its non-publicity policy appear disproven: (i) the identity of the individual candidates appears to have been disclosed anyway, (ii) their reputation is at stake as in the absence of publicity of the reasons justifying that decision they can’t defend themselves, but are subject to speculation, and, (iii) future candidates might be chilled in being nominated due to the lack of predictability characterising the 255 committee’s untransparent oversight and baseline used to exercise their suitability check.

Ironically, if only it had taken that original critique several observers made to its opaque policy more seriously, the 255 committee would today have been better placed not only to defend the reputation of candidates – those it incessantly declared to care about – for the judicial posts, but also that of its own members. Ultimately, by reconsidering the balance to be struck between the imperative of transparency and the candidates’ privacy concerns, the committee would have prevented the overall legitimacy of the judicial oversight system from being questioned.

The case for enhancing the transparency of the operation of the 255 committee to legitimize both its process and outcome has never been more evident.

This is what prompted us to file yet another request for access – this time not to all unfavourable opinions formulated over the past two year, but to two specific (presumably negative yet black-boxed) opinions regarding the two last candidates for the post of judge of the CJEU by the Portuguese government – to encourage both the 255 Committee and the Council to reconsider their publicity policy.

Ultimately, it is not only legally possible but also in line with societal expectations for the advisory committee to gradually shift the balance away from privacy concerns towards more openness both during and after the selection process.

This would allow the panel to address the significant democratic legitimacy and accountability concerns raised by their operation and help them discharge their final mission: to strengthen the authority of the CJEU by facilitating the acceptance of their rulings in the eyes of the public.

The systematic rejection of any form of publicity of its opinions appears difficult to reconcile with the principle of institutional openness applicable to all EU institutions and the applicable regime of access to documents. This appears even more problematic insofar as the Council failed to substantiate its alleged concern that access to the opinion would damage the candidates’ reputation, which is already in tatters despite (rectius because) of its integral secrecy.

C. Reference to the European Ombudsman decision in case 1955/2017/THH does not carry legal value and can’t be used in support of the Council’s rejection

Last but not least, it must be noted that the GSC’s rejection to our request is not supported by the European Ombudsman decision in case 1955/2017/THH, which found - in those specific circumstances- that “the refusal of the Council to provide full public access to the opinions of the Panel on judicial appointments was justified”. This is true insofar as:

1. That conclusion was reached in a case in which the complainant had asked access for all 255 opinions delivered by the panel since its inception, and not – as in the present case – in which the applicant requested access to two specific opinions of candidates which have become the object of intense public scrutiny as documented above.
2. While the Ombudsman concluded that the rejection did not represent maladministration, it “nonetheless welcomed the public interest served in submitting the complaint as it provided an opportunity for some independent scrutiny of a matter of significant importance to EU citizens”.

It is in this spirit that we lodge this confirmatory request today, by reserving the possibility of seeking an action of annulment against the Council’s future rejection of such a request.

Conclusions
We trust that this confirmatory application will be addressed expeditiously and within the time limits set forth in Regulation (EC) 1049/2001. We thank you in advance for your timely and complete response.

Sincerely,

Brussels, 16 April 2025

A full history of my request and all correspondence is available on the Internet at this address: https://www.asktheeu.org/request/selecti...

Yours faithfully,

Alberto Alemanno
rue du commerce 72
B-1000 Brussels