Independence, Impartiality and the Prevention of Conflicts of Interest
The independence and impartiality of judges are fundamental guarantees of the rule of law and of the right to a fair hearing. As the judicial institution of the European Union, the Court of Justice of the European Union (CJEU) is subject to a comprehensive framework designed to safeguard those principles and to prevent situations that could give rise to conflicts of interest.
This framework is based on the , the Statute of the Court of Justice of the European Union, the Rules of Procedure of the Court of Justice and the General Court, and the Code of Conduct for Members and former Members of the Court of Justice of the European Union.
The safeguards in place operate at every stage of a Member’s professional life: before appointment, during the exercise of judicial functions and after leaving office.
A regime which begins before appointment
The first safeguards apply before a person is appointed as a Judge or Advocate General.
Under the Treaties, candidates must be chosen from persons whose independence is beyond doubt and who possess the qualifications required for the highest judicial office in their respective countries or are Jurisconsultof recognised competence.
Before appointment, candidates are assessed by the panel established under Article 255 TFEU. Composed of leading experts offering every guarantee of independence, the panel examines the suitability of candidates in light of several criteria, including their independence, impartiality, integrity and professional conduct.
Once appointed, Members take an oath before the Court, in public session, to perform their duties impartially and conscientiously and to respect the obligations arising from their office.
Safeguards during the term of office
The system for preventing conflicts of interest is reinforced throughout a Member’s term of office. It combines general preventive measures, safeguards linked to the assignment of cases and mechanisms applicable whenever a specific situation requires further examination.
General preventive mechanisms
Members of the Court are subject to strict rules to ensure their independence.
They may not hold political or administrative office and may not engage in professional activities other than those arising from the exercise of their judicial functions.
In addition, Members may engage in external activities that are closely related to the performance of their duties, subject to prior authorisation. These external activities encompass representing the institution at ceremonies and official events and participating in activities of European interest, such as the dissemination of EU law or in dialogue with national or international courts. Such authorisation may be granted only where the activity is compatible with the Member’s obligation to be fully available for their work at the Court and with their duties of independence, integrity and impartiality. The compatibility of those activities is assessed by the highest deliberative body of the court concerned, composed of all its members.
In the interest of transparency, details of all external activities carried out by Members are published on the Curia website every year.
Nationality
An essential feature of the Courts’ composition and functioning is that Judges and Advocates General do not represent their Member States. As solemnly expressed by their oath, they perform their duties independently and impartially and they act in the general interest of the Union.
This is the rationale of the rule, set out in Article 18 of the Statute, according to which a party may not apply for a change in the composition of the Court on the grounds of either the nationality of a Judge or the absence of a Judge of the nationality of that party.
Declarations of interests
When Members take office, they must submit a declaration of interests to the President. Members renew this declaration whenever their situation changes and with each 3-year renewal of the Court.
Members are required to declare a broad range of interests and activities, including relevant financial and real-estate interests, professional activities of spouses or partners, specified non-remunerated functions and honorary positions or distinctions. “Relevant financial interests” are all financial securities, such as, shares, stocks, bonds or investment certificates, owned or in usufruct, except holdings managed on a discretionary basis by a third party. Declarations of interests encompass not only the judge’s own financial interests but also those of spouses or partners and dependent minor children.
Declarations of interests constitute a significant component of the Court’s preventive framework. Their purpose is to assist in identifying and preventing any situation that could give rise to a conflict of interest, or that could objectively be perceived as such, in connection with the handling of a case. As such, they serve as a mechanism for both transparency and prevention.
Assignment of cases and recusals
As an initial safeguard of judicial independence, when cases are assigned, the President of the Court concerned takes due account of the information contained in the declarations of interests in order to avoid any conflict of interest.
This assessment is carried out in the specific context of each case, by comparing the interests at stake in the dispute with those declared by the Members. The operation falls within the broader scope of the analysis carried out by the President, not only to ensure the quality and impartiality of justice but also to achieve an optimal distribution of the workload among Members. This multifaceted analysis implies a preliminary review of the dispute based on procedural documents (which are confidential), a sound knowledge of the content of each Member’s declaration, and an overview of the Court’s portfolio. It is therefore, by nature, intimately linked to the judicial activity of the Court, as opposed to its administrative functioning.
While the assignment of cases constitutes an important stage in the practical application of the Court’s conflict-of-interest safeguards, the recusal of a Member subject to a conflict of interest may occur - at any point in the proceedings - at the initiative of the President, the Member themselves, or a party to the case.
Indeed, Members have a duty to notify the President whenever they consider that a particular circumstance may prevent them from participating in the handling of a case. Likewise, where the President considers that a Member should not take part in a case for a specific reason, the President will notify that matter to the Member. These mechanisms ensure that potential issues can be addressed at any stage of the proceedings.
In such situations, the Member concerned does not participate in the disposal of the case.
Obligations after leaving office
The safeguards protecting independence and impartiality continue to apply even after a Member has left office.
Former Members remain bound by obligations arising from their judicial office, including duties of integrity and discretion.
The Code of Conduct also establishes specific restrictions designed to prevent overlaps between former judicial functions and subsequent professional activities. For three years after leaving office, former Members may not act as representatives before the CJEU. Additional restrictions apply to cases that were pending during their term of office or that are directly connected with matters in which they participated as Judge or Advocate General.
These provisions help preserve confidence in the independence of the Court and in the integrity of its judicial process.
A comprehensive system of safeguards
The Court itself regularly reviews its internal rules and practices in light of evolving expectations regarding transparency and public confidence.
The prevention of conflicts of interest at the Court of Justice of the European Union does not rely on a single mechanism. It is ensured through a comprehensive framework combining eligibility requirements, ethical obligations, restrictions on external activities, declarations of interests, case-assignment safeguards, duties of recusal where appropriate and restrictions after leaving office.
Taken together, these safeguards are designed to protect the independence and impartiality of the Court’s Members and to maintain public confidence in the administration of justice within the European Union.
