Possible conflict of interest at the CJEU: over 40% of judges and advocates-general have interests in the functioning of the business environment

Over 40% of judges and advocates-general currently in office have declared private financial interests in companies or economic sectors that may appear before the Court of Justice of the European Union (CJEU), according to a journalistic investigation carried out by Investigate Europe and published yesterday by the European website Follow the Money (FTM).

From the analysis of transparency documents published by the CJEU, the journalists of the cited source identified stakes in companies such as Eni, Total, AstraZeneca, Airbus, Amazon, Boeing and numerous other companies in the fields of energy, pharmaceuticals, aviation, technology, infrastructure and real estate. In total, 36 magistrates have declared interests in 124 economic entities. The investigation also found three cases where judges or advocates-general participated in the resolution of cases involving companies in which they had financial interests or direct competitors of those companies. In many other cases, they judged disputes concerning industries in which they had declared investments.

To carry out the investigation, all cases published on the Court's website between 2018 and 2024 were analysed, also using the database developed as part of the IUROPA research project, which tracks the work of the CJEU. Two types of potential conflicts of interest were monitored: direct correspondence, when a judge or advocate-general had financial interests in an entity involved in a case in which he or she participated, and sectoral correspondence, when the declared investments concerned companies operating in the same sector or competing with one of the parties to the case. In parallel, possible situations of national bias were also analyzed, by comparing the public biographies of judges with their involvement in cases concerning their own states.

Professor Alberto Alemanno, one of the most renowned specialists in European institutional transparency and integrity, declared to the cited press investigation: "The Court of Justice of the European Union still does not meet the standards of transparency currently expected from the great supreme courts”. In turn, the President of the General Court of the European Union, Marc van der Woude, stated that the results of the investigation will be analyzed by an internal committee of the court.

In parallel, the European Ombudsman (People's Advocate in the EU) Teresa Anjinho announced the opening of an inquiry after Investigate Europe filed a complaint regarding the Court's refusal to publish all declarations of interests filed by judges over the years. The European Ombudsman stated that he would discuss this issue with the representatives of the Court by mid-September.

• Suspected conflicts of interest in the Servier and BNP Paribas cases

One of the most discussed examples presented by the investigation concerns Juliane Kokott, one of the Court's most influential advocates-general and a recognised expert in competition law. According to her most recent declaration of interests, her portfolio includes shares in a German rail infrastructure company, investments in a physical gold fund and stakes in three major pharmaceutical companies: AstraZeneca, BioNTech and Merck. The Court's rules do not prohibit such investments. The code of conduct only requires judges and advocates-general to declare their financial interests when they take up their duties and to update their declarations every three years or whenever there are changes. They must also report any potential conflicts of interest when they are assigned to a case and, if necessary, to abstain from participating.

The Organisation for Economic Co-operation and Development defines conflict of interest as a situation where a public official's private interests "could improperly influence” the performance of his or her responsibilities. In the case of perceived conflict of interest, the OECD points out that such interests can create the appearance of influence, even if it does not actually exist.

Since 2016, Juliane Kokott has been appointed to deliver opinions in at least eight cases concerning the pharmaceutical industry, and has delivered opinions in four of them. The opinions of the Advocates General have a considerable influence on the Court's decisions, and are followed in around 80% of cases by the judges who give the final decision.

In 2019, Kokott was appointed in a dispute between the French pharmaceutical company Servier and the European Commission over a treatment for high blood pressure. Two years later, she bought shares in AstraZeneca, BioNTech and Merck. She explained that she made these investments to "contribute - to a very limited extent - to the development of vaccines against COVID-19”. In 2022, the Advocate General delivered her Opinion in the Servier case.

In her response to Investigate Europe, Juliane Kokott stated that "I have strictly complied with all the relevant rules, in particular those relating to impartiality and conflicts of interest”. Regarding the Servier case, she stressed that her opinion was not favourable to the company: "I have argued that the agreements concluded by the Servier group with generic manufacturers constituted restrictions of competition. This does not in any way benefit another originator manufacturer, such as AstraZeneca, and therefore does not increase the value of its shares”. Kokott stated that she only holds five AstraZeneca shares, five Merck shares and seven BioNTech shares. Asked whether holding shares in a sector on which she gives an opinion could raise questions of conflict of interest, she replied that "I do not share that impression”, without answering whether any apparent conflict had been analysed by the Court.

A senior European law expert familiar with the functioning of the CJEU, who wished to remain anonymous, told the source that "the fact that a judge generally supports the pharmaceutical industry is problematic, even if the value of the shares is rather symbolic”. He stresses that the key issue is public perception: "It is about the perception that such situations create and this is where the problem arises.”

The investigation also presents the case of Belgian judge Geert de Baere. In 2023, he was part of the five-judge panel that resolved a dispute concerning BNP Paribas, although he had previously declared a financial interest in BNP Paribas Fortis. Marc van der Woude explained that De Baere did not hold shares in BNP Paribas, but had current and savings accounts with the bank and an investment portfolio managed by it. According to the President of the General Court, his inclusion in the panel was necessary to maintain the coherence of the decisions in a group of disputes concerning more than 40 banks. Van der Woude admitted, however, that he had not considered the existence of this financial interest when the judge was assigned to the case, but said that he would have agreed to his participation anyway.

The investigation stresses that there is no evidence that the examples presented represent real conflicts of interest or that the magistrates have obtained material benefits from the cases in question. However, the findings raise questions about the checks carried out by the Court when the cases were allocated. Asked whether the magistrates involved were aware of the existence of possible conflicts when they received the cases, the institution did not provide an answer.

• Five magistrates submitted half of the declarations of interest posted on the CJEU website

During the investigation, the CJEU repeatedly refused Investigate Europe's requests for access to information on the financial interests of judges and the way in which cases are allocated, citing the confidential nature of internal deliberations. The Court also refused to provide previous versions of the declarations of interest.

Analysis of public documents shows that five magistrates accounted for half of all declared financial interests: Ramona Frendo, Lauri Madise, Tuula Pynnä, Andreas Kumin and Juliane Kokott. Among the companies in which the judges had declared interests were Eni, Total, Repsol, Novo Nordisk, Boeing, Airbus, Amazon, Erste Bank, Swedbank, Bank of Valletta and the US conglomerate Berkshire Hathaway. However, public declarations almost never contain information on the size of the holdings, and almost a third of these had been published more than three years ago, apparently in contradiction with the Court's own transparency policy. In the days leading up to the publication of the investigation, following requests from journalists, over 35 declarations of interests were re-uploaded to the institution's website in updated versions. Even so, at least three documents were undated at the time of the investigation's publication, and for one magistrate there was no declaration publicly available.

According to Professor Silje Hermansen, who specialises in the politics of the judiciary, the mere possibility of judges holding shares poses an unnecessary risk to the credibility of the Court. She argued to the cited source that when a listed company wins a major case, the value of its shares can immediately increase. In her opinion, the Court should consider a reform whereby judges would be obliged to sell their shares before taking office, stressing that "you will not find better paid people in the European Union institutions than these magistrates”.

Marc van der Woude said that, when he worked in a private law firm, he and his colleagues were forbidden by direct holding of shares. "It was absolutely clear and there was no ambiguity,” he said.

A spokesperson for the Court stated, according to Follow the Money, that "Judges and Advocates General of the Court of Justice are citizens who have a private life and decide for themselves how they want to manage their assets.” Regarding the diversity of declared investments, the representative of the institution stated that "there is nothing wrong with holding shares or other interests as long as they do not affect the proper administration of justice,” adding that so far no judge has had to be disqualified for this reason.

• Pressure from member states in the event of the renewal of the mandates of some CJEU judges

The investigation also analyzed the risks associated with the links between judges and the states that nominated them. The mandates of CJEU judges last six years and can be renewed, and many of them have previously held political positions in their own countries. Examples include Luxembourg judge François Biltgen, a former minister for 14 years and close to former Prime Minister Jean-Claude Juncker. In 2023, Biltgen was part of the panel that resolved the dispute over the tax treatment of Amazon in Luxembourg, in a case in which the European Commission sought the recovery of euro250 million from the US giant, claiming that it had benefited from tax advantages during the time Biltgen was in government. The court ruled in favor of Amazon and Luxembourg.

François Biltgen said that his participation did not constitute a conflict of interest in any way. "There cannot be even the appearance of a conflict of interest, unless the notion of a conflict of interest is unduly extended,” he said. He clarified that the contested decision had been taken by the tax administration and not by the government, and added that since his appointment to the CJEU, he has no official contacts with the Christian Social Party and has never been subject to political pressure from any entity.

Analysis of the IUROPA database shows that, between 2018 and 2024, CJEU judges served as judge-rapporteurs in around 30 cases directly involving their own states. In this essential role, the judge prepares the draft judgment that is then debated by the other members of the bench.

Researcher Carles Aules Blancher told Follow the Money that CJEU judges have "a duty of loyalty to the state that appointed them”, and the same states have the power to renew their mandates. He believes that the current six-year term is "a sword of Damocles hanging over the judges' heads” and supports replacing this system with longer, non-renewable terms. In this regard, he recalls that the European Court of Human Rights amended its appointment rules in 2010, introducing single nine-year terms.

In the institutional heart of the European Union, far from the political spotlight in Brussels and the public debates that dominate the EU agenda, sits one of the most influential European institutions: the Court of Justice of the European Union. Around 90 judges and advocates-general decide on cases that can force governments to change their laws, force companies to pay billions of euros and set the rules for the functioning of the world's largest single market, which affects almost half a billion European citizens. That is why the standards of integrity imposed on the members of the court are extremely high. The Court's code of conduct explicitly states that judges must avoid any situation "which may give rise to a conflict of interest or the appearance of one".

However, the cited investigation reveals that a significant number of the judges and advocates general of the CJEU have private financial interests in companies and economic sectors on which the European court is called upon to rule, raising serious questions regarding independence, impartiality and mechanisms for preventing conflicts of interest.