EU Trends and Developments Contributed by: Nathalie Colin, Florence Frühling and Niels Depaepe, Freshfields
The Public Policy Exception and Enforcement of Judgments: ECJ’s Ruling in Real Madrid v Le Monde The recent European Court of Justice (ECJ) judg - ment in Real Madrid Club de Fútbol v Le Monde (C-633/22), delivered on 4 October 2024, represents a new development in EU judicial co-operation con - cerning enforcement of judgments – particularly in the application of the public policy exception. Although the case concerned the original Brussels I Regula - tion (Council Regulation (EC) No 44/2001), the ECJ’s ruling remains fully relevant under the Brussels I Recast Regulation (Regulation (EU) No 1215/2012), as it retains an equivalent public policy exception in Article 45 (1)(a). Article 45 (1)(a) of the Brussels I Recast Regula - tion allows the court of the member states in which enforcement or recognition is sought to refuse to do so if the foreign judgment is “manifestly contrary to public policy in the member state addressed”. The ECJ consistently maintains that this exception must be interpreted strictly, ensuring the free circulation of judgments within the EU while safeguarding funda - mental rights. The recent judgment demonstrates a balance between fundamental rights, such as freedom of expression, and the principle of mutual trust among EU member states. Background and facts of the case In 2006, French newspaper Le Monde published an article alleging that Real Madrid football club had retained the services of a doctor implicated in a dop - ing scandal in professional cycling. Real Madrid and a member of its medical team successfully initiated defamation proceedings in Spain, awarding them with EUR390,000 and EUR33,000 respectively. Enforce - ment of the Spanish judgments was sought in France. While initially granted, the Paris Court of Appeal even - tually refused enforcement, finding that enforcement would breach French public policy due to dispropor - tionate interference with freedom of expression. This ruling was challenged before the French Cour de cas- satio n, which referred it to the ECJ to clarify whether – and under what conditions – the enforcement of a
judgment for non-material harm against a publisher and one of its journalists might be refused under the public policy exception. ECJ’s clarification of public policy exception in relation to freedom of expression The ECJ reaffirmed that member states alone deter - mine their public policy content and that the ECJ can only verify whether the domestic courts applied the exception within the contours of EU law. As such, a domestic court cannot re-examine the merits of a decision to refuse recognition or enforcement. The ECJ clarified that recognising a judgment that vio - lates the freedom of expression enshrined in Article 11 of the EU Charter of Fundamental Rights (the “Char - ter”) justifies applying the public policy exception – especially given that member states must uphold Charter rights when recognising intra-EU judgments The ECJ concluded that recognising/enforcing a judg - ment that grants damages of such size that it could deter the exercise of freedom of press violates Article 11 of the Charter and may be refused under the public policy exception. It specified that such interference with press freedom occurs when the damages are clearly excessive relative to the actual harm suffered, the defendant’s financial capacity, the seriousness of the wrong, or comparable case-law standards. The ECJ concluded that it is up to the courts of the member states to estimate whether the enforcement of a particular judgment awarding damages for libel manifestly breaches the freedom of press in the mem - ber state where the enforcement is sought. under the Brussels I (Recast) Regulation. Structured assessment of the impact on fundamental rights Partial enforcement as a novel judicial approach The ECJ ruling gives guidance to domestic courts on their duty to limit their refusal to enforce foreign judg - ments specifically to those elements that are mani - festly disproportionate. This nuanced approach may enable national courts to ensure fundamental rights are respected without undermining the whole foreign judgment.
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