Can António Costa be EU Council president despite his legal woes?

António Costa is the clear frontrunner to be the next president of the European Council. But the former Portuguese prime minister has one major obstacle standing in his way: he remains the subject of an ongoing legal probe back home.

Costa has not been formally charged with any crime, but is under investigation as part of the far-reaching influence-peddling probe that prompted his resignation last November.

Prosecutors allege that members of Costa’s government tailored legislation to benefit the backers of a state-of-the-art data center in Sines, in the south of the county. The then-prime minister’s name was mentioned by suspects in several wiretaps, leading prosecutors to suspect he may have been in on the scheme. He denies any wrongdoing.

Costa’s legal issues do not seem to have deterred EU leaders, many of whom want to see him succeed Charles Michel as Council president, leading meetings of the bloc’s 27 heads of state and government.

The Portuguese politician certainly appears like an ideal candidate. He is a member of the socialists, who came second in the EU election and want one of their own leading the Council. He is well-liked by European presidents and prime ministers of all stripes, and is viewed as a pleasant, fair-dealing negotiator with the skills needed to forge complex consensus decisions.

But he hasn’t got the job yet, and the ongoing legal probe could be brought up by Nordic countries seeking to boost the candidacy of Danish Prime Minister Mette Frederiksen, who is considered to be more aligned with their positions on defense and migration.

In the past, EU leaders managed to overlook domestic problems when choosing people for top jobs. Commission President Ursula von der Leyen was tapped for the post while an investigative committee of the German parliament was examining whether lucrative contracts had been awarded without proper oversight during her time as defense minister.

But the Qatargate cash-for-influence scandal, which mainly involved socialists from southern Europe, raised the bar in Brussels. In the wake of European Parliament elections in which far-right groups made major advances by campaigning against the rot within Europe’s mainstream parties, Costa’s legal woes could be problematic.

An ongoing investigation

The details of the investigation into Costa remain classified, but a constant trickle of embarrassing leaks over the past eight months has damaged the credibility of the prosecutors handling the case.

António Costa is the clear frontrunner to be the next president of the European Council. | Jose Sean Goulao/EPA

Perhaps the biggest was the revelation that prosecutors made an error when transcribing a wiretap in which “António Costa” was mentioned by suspects. During a court hearing, investigators admitted that the voices in the recording had not been discussing the prime minister, but rather his economy minister, António Costa Silva.

In April, the case was further undermined when Lisbon’s Court of Appeals struck down the coercive measures — among others, a ban on leaving the country — that the investigating judge had imposed on some of the other defendants charged as part of the probe.

In their report, the appeals court judges wrote that while figures like Costa’s chief of staff, Vítor Escária, and his personal adviser, Diogo Lacerda Machado, had engaged in interactions that generated “a perception of opacity, promiscuity and illegality of procedures,” the coercive measures were not justified because, technically speaking, their actions could not be considered criminal offenses.

The appeals court judges dismissed the suspicions involving Costa as “speculations,” but because the ruling only concerned the coercive measures imposed on other defendants, prosecutors were able to press on with their investigation.

After he stepped down as prime minister last April, Costa’s file was transferred from the Supreme Court — the only body with the power to punish crimes committed by Portugal’s head of government — to the Central Department of Investigation and Criminal Action (DCIAP), which deals with civilians.

At his request, in late May the socialist politician attended a closed-door hearing in which he answered questions posed by the public prosecutor. The ex-prime minister’s lawyer, João Lima Cluny, told POLITICO that no charges had been filed against Costa during the hearing, “which suggests that the Public Ministry, at least at this moment, has not found evidence that substantiates that any crime has been committed.”

Lima Cluny acknowledged that the case was ongoing. “We are waiting to hear if the case will be archived,” he said, but admitted that there was no firm timeline for that.

Outgoing European Parliament Vice President Pedro Silva Perreira, a Portuguese socialist, said there were no longer any suspicions against Costa that would complicate his appointment to the top job.

“This situation has been absolutely clarified,” he said. “He’s been heard by the justice [system] and he’s not even considered a suspect or a person of interest.”

But Rui Gustavo, a veteran judicial reporter with Portuguese weekly Expresso, disputed that framing, pointing out that Costa has not been cleared.

“Costa remains a suspect,” Gustavo said. “There hasn’t been any official statement to the contrary.”

“Other than the fact that he’s been heard by prosecutors, his situation remains the same as before: He hasn’t been charged, but he hasn’t been cleared, either,” he stressed.

Gustavo added that even if prosecutors ultimately conclude there is no case against Costa, they could take a long time to say as much. “The justice system is slow in Portugal.”

Eddy Wax contributed reporting.