Introduction
In a recent preliminary reference judgment dated October 4, 2024 in the names Real Madrid Club de Fútbol, AE v EE, Société Éditrice du Monde SA (CJEU C-633/2022), the European Court of Justice (ECJ) issued a ruling highlighting the balance between defamation damages, press freedom and the recognition and enforcement of judgments in civil and commercial matters.
The ECJ ruled that the recognition and enforcement of a Spanish Judgment obtained by Spanish football team Real Madrid in Spain, against French Newspaper Le Monde in France, containing excessive defamation damages could breach press freedom and fundamental freedoms and may thus be refused by the French Courts, through the invocation of the "public policy" exception under the Brussels I Regulation (now replaced by Brussels I Recast – Regulation (EU) No 1215/2012).
The ruling delineates the limits of the principle of "mutual trust" between Member States, in favour of "substantive" public policy exceptions which may be invoked by EU Member States in certain circumstances.
Case Background
Back in 2006, Spanish football club Real Madrid and its medical team sued Le Monde for defamation, following articles related to a doping scandal. The Madrid court ruled in favour of Real Madrid, awarding €330,000 in damages in 2009. Following a declaration of enforceability issued in terms of the Brussels I Regulation by the Paris Courts, the Paris Court of Appeal overturned the enforceability of this judgment in France, citing public policy. Real Madrid then appealed to the French Cour de Cassation, which referred several questions for a preliminary ruling on matters of interpretation of EU law to the ECJ.
Following its analysis of the questions referred, the ECJ concluded that the recognition and enforcement of the Spanish judgment could be refused by the French Courts, if damages were disproportionate and could deter press freedom thus leading to a "manifest breach of public policy" in the Member State addressed.
Mutual Trust and Public Policy
Following established case law on the matter, the ECJ reiterated, that recourse to the public policy exception provided in Article 34(1) Brussels I (now Art 45, Brussels I Recast) is conceivable only if the recognition or enforcement of the decision rendered in another Member State would unacceptably contradict a fundamental principle of the legal order of the requested Member State. To respect the prohibition of the so-called revision au fond (which is based on the notion of mutual trust between Member States), the infringement must constitute a manifest violation of a legal rule considered essential in the legal order of the requested Member State or of a right recognized as fundamental in that legal order (Apostolides, C-420/07, EU:C:2009:271, Meroni, C-559/14, EU:C:2016:349, paragraph 42).
More importantly, the Court also held that the fact that the manifest violation in question concerned a rule of Union law (rather than an internal rule of the requested Member State) did not change the conditions for recourse to the public policy clause. Indeed, and according to established case law, it is the responsibility of the national judge of the Member State addressed to ensure the protection of rights established by the national legal order and those conferred by the Union legal order with the same effectiveness. The Court thus ruled that the public policy clause is intended to apply in the same way when the recognition or enforcement of the decision in the requested Member State leads to a manifest violation of an essential rule in the Union legal order or a right recognized as fundamental in EU law.
What about the revision au fond?
In what appears to be a significant statement on the revision au fond principle, the ECJ provides in its ruling, that the court of the member state addressed may take into account a number of criteria and "all the circumstances of the case", including not only the resources of the defendant in the libel suit, but also the seriousness of their fault and the extent of the damage as established in the main proceedings, and thus whether the enforcement of these decisions would result , in a manifest violation of the rights and freedoms enshrined in Article 11 of the EU Charter of Fundamental Rights.
The ECJ's decision thus allows national courts to assess whether damages in defamation cases are proportionate, considering factors like the severity of the fault and the defendant's financial means, thus clearly allowing for an assessment of the substantive facts of the case, in its consideration of whether the decision leads to a breach of "substantive" ordre public.
Conclusion
The Real Madrid Club de Fútbol, AE v EE, Société Éditrice du Monde SA case illustrates the ECJ's evolving stance on integrating and balancing fundamental rights enshrined in EU law, and the principles of mutual trust and judicial cooperation between EU Member States.
While emphasizing the scope of the 'public policy' exception, the ECJ's decision suggests a clear shift towards allowing national courts, to consider judgments from other EU Member States (in their substance) and to determine whether the recognition and enforcement of such judgments infringe fundamental rights and freedoms, challenging the principle of "mutual trust" (which according to settled caselaw) appears to also have its limits.
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