Can the freedom of press block the free movement of judgments in the European Union? Can EU Member States deny the enforcement of a judgment of another Member State imposing excessive penalties on journalist and publishing houses? We analyse these questions in the light of a recent CJEU judgment rendered under the Brussels I Regulation.
ILF’s Hungarian member, Smartlegal Schmidt&Partners summarizes this issue in the article
Judgment awarding damages in Spain
In 2006, the newspaper Le Monde (France) published an article in which the author, a journalist employed by that newspaper, claimed that the famous football clubs Real Madrid and Fútbol Club Barcelona had retained the services of the head of a doping ring in the cycling world.
Even if two weeks later the newspaper published a letter of denial received from Real Madrid, the football club and a member of its medical staff (collectively: “Claimants”) brought a damages action against the publisher of Le Monde (“Le Monde”) and the journalist (collectively: “Defendants”) because of the article in Spain.
The Spanish first instance court ordered Le Monde to pay EUR 300.000 and the journalist to pay EUR 30.000 for the non-material damages. That judgment was essentially upheld by the appeal court and by the Spanish Supreme Court (“Spanish Judgment”).
Refusal to enforce the Spanish Judgement in France
The Claimants intended to enforce the Spanish judgment in France, but the Paris Court of Appeal (“Paris Court”) denied the enforcement because it held that it was contrary to French international public policy.
The Paris Court argued, among others, that the amounts awarded were disproportionately high compared to the loss of the publisher, moreover, the amount of the judgment ordering the private individual to pay EUR 30.000 damages was much higher than the usual amount of damages awarded in similar situations in France.
The Paris Court concluded that the penalties had a deterrent effect on the involvement of the Defendants in the public discussion, the penalties curtail the media’s ability to perform its information and monitoring role, therefore, the recognition or enforcement of the Spanish Judgment is contrary to the freedom of expression, which form part of the French public policy.
Request for preliminary ruling by the French Supreme Court
Claimants brought the case before the French Supreme Court, arguing, among others, that by its assessment regarding the harm, the Paris Court had reviewed the merits of the Spanish Judgment, which is contrary to the provisions of the Brussels I Regulation[1] („Brussels I Regulation” or “Regulation”).
The French Supreme Court asked the Court of Justice of the European Union („CJEU”), in essence, whether the enforcement of a judgment ordering a publishing company and one of its journalists to pay damages by way of compensation for non-material damage can be refused, on the ground that it is a manifest breach of the freedom of the press as enshrined in Article 11 of the Charter the judgment, therefore, it is contrary to the public policy of France under the Brussels I Regulation.
Decision of the CJEU
Public policy under Brussels I Regulation
The CJEU highlighted that under the Brussels I Regulation[2] a judgment from an EU Member State must not be recognised in another Member State if such recognition is manifestly contrary to public policy in the latter.
However, the public policy clause would apply only where the recognition or enforcement of the judgment concerned in the Member State in which enforcement is sought would result in the manifest breach of a rule of law regarded as essential in the EU legal order or of a right recognised as being fundamental within that legal order.
Furthermore, according to the European Charter of Fundamental Rights (“Charter”)[3], the national court, when applying EU law, such as the Regulation, must comply with the requirements flowing from the fundamental rights enshrined in the Charter.
However, when implementing EU law, the Member States may be required to presume that fundamental rights have been observed by the other Member States. Based on the above, the CJEU concluded that the national court shall refuse to recognise the decision based on public policy clause only if it constitutes a manifest breach of a right stipulated in the Charter.
The Charter
The CJEU laid down that as the rights in the Charter have the same meaning and scope as the corresponding rights guaranteed by the European Convention of Human Rights (“ECHR”), the CJEU must take account the interpretation of the European Court of Human Rights (“ECtHR”) on the corresponding rights guaranteed by Article 10 ECHR.
Based on the case-law of the ECtHR, it concluded that any judgment awarding damages for harm to reputation must comprise a reasonable relationship of proportionality between the amount awarded and the harm in question.
Furthermore, large damages awards which are high compared to awards made in comparable libel cases are considered capable of having a chilling effect on the exercise of freedom of the press.
Combined reading of the Regulation and the Charter
Based on the above, the enforcement of a judgment, which may give rise to a manifest breach of the rights and freedoms as enshrined in Article 11 of the Charter (Freedom of expression and information), must be refused.
The referring national court shall determine, taking account of all the circumstances of the case, including not only the resources of the persons against whom judgment is given but also the seriousness of their wrong and the extent of the harm as found in the judgments at issue in the main proceedings, whether the Spanish Judgment is contrary to the public policy.
It is also for the referring national court to ascertain whether the damages awarded in those judgments are manifestly disproportionate.
However, the assessment of the national court cannot involve a review of the substantive assessments carried out by the court in the Member State of origin, as that would amount to a review of the merits, which is expressly prohibited under the Brussels I Regulation.
In addition, the national court shall apply a sophisticated approach, and it shall consider the partial refusal of enforcement of the foreign judgment, both in terms of the Defendants and in terms of amount.
Comment
In this case, the CJEU had to resolve the conflict between two principles of EU law.
First, the Brussels I Regulation has introduced the principle of “free movement” of judgments within the European Union. This is one of the cornerstones of the judicial cooperation between European Union courts, meaning that judgments rendered in any EU Member State shall be enforced automatically in other Members States, and the denial of enforcement shall be exceptional.
Second, the EU is built upon the respect of fundamental human rights, one of which is the freedom of expression, enshrined in the Charter and the ECHR. Fundamental human rights are strongly protected by both the Luxembourg and Strasbourg case law, and they form part of the public policy of each EU Member State.
The CJEU resolved the above conflict in favour of the freedom of expression, allowing the denial of the enforcement of a judgment of another EU Member State which can undermine this fundamental human right.
However, the sophisticated approach of the CJEU which advocated for the examination of the partial refusal of the foreign judgment by the national court (both in terms of defendants and amounts) has struck a fair balance between these two principles.
To sum up, the freedom of press cannot block, but it can limit the free movement of judgments within the European Union.
It is yet to be seen how national courts in the EU cope with this sophisticated approach in the future.
In the article, we analysed the decision of CJEU issued under Case C‑633/22.
Written by Dr. Schmidt Richárd LL.M PhD, and dr.Péter Korózs
SMARTLEGAL is a team of agile business & litigation lawyers in Budapest, Hungary, helping international corporate clients and individual entrepreneurs doing business in Hungary. For more information please visit our website at smartlegal.hu
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[1] It is now superseded by a recast Brussels Ia regulation (Regulation No. 1215/2012 of the European Parliament and of the Council)
[2] Article 34(1) of Brussel 1 Regulation
[3] Article 51(1) of the Charter