On 4 October 2024, the Court of Justice of the European Union (CJEU) issued that a Member State of the EU may refuse to enforce a judgment issued in another Member State if the enforcement would result in a manifest violation of the freedom of expression and information enshrined in Article 11 of the Charter of Fundamental Rights of the European Union (Charter). 

The national decision considered in the CJEU ruling was a judgment issued in Spain following an action brought before the Court of First Instance of Madrid from a Spanish sports club (Real Madrid) and a member of its medical staff (A.E.) against a journalist of the French newspaper Le Monde (E.E.) and the Société éditrice du Monde SA, seeking compensation for damages caused by a defamatory publication. The Spanish courts ordered the defendants to pay a particularly high amount in damages. The plaintiffs subsequently attempted to have the judgment enforced in France, where the defendants held the majority of their assets. When the matter reached the Cour de Cassation in France, the court issued a request of preliminary ruling to the CJEU, asking whether, and under what conditions, the enforcement of the Spanish judgment should be refused as it constituted a violation of freedom of information and freedom of expression guaranteed by Article 11 of the Charter, and thus whether it was in manifest violation of French public policy (ordre public).

Pursuant to Reg. (EC) No. 44/2001 (so-called Brussels I, applicable ratione temporis) an EU Member State may refuse to enforce a judgment issued in another Member State exclusively on the basis of the grounds set out in Brussels I Regulation. In accordance to artt. 34 No. 1 and 45, when a foreign decision is manifestly contrary to the public policy of the Member State addressed, its execution shall be refused. 

While affirming that it is for the French court to determine whether the Spanish judgment is manifestly contrary to its own public policy, the CJEU outlined a number of criteria that national courts should use when making such an assessment. The EU Court stated that when a judgment against a journalist or a newspaper company has a potential deterrent effect in the sector, it may be considered contrary to the public policy of other Member States and the execution of the decision be refused in such States. Moreover, the deterrent effect on freedom of expression and information must be evaluated based on the reasonableness and proportionality of the sums awarded as damages against the journalists or newspaper companies. If no such proportionality exists, the foreign judgment may have a deterrent effect on the freedom of information and expression.

 

(Comment by Pietro Campana)