The matter at hand
In 2006, the French newspaper Le Monde published an article claiming that the football club Real Madrid had retained the services of Mr. Fuentes, a doctor associated with an infamous doping ring in the cycling world. Real Madrid and a member of its medical team brought an action for damages before the Spanish Courts. The Spanish Courts ordered, in all instances, that Le Monde and the journalist who wrote the article pay damages of EUR 300,000 to Real Madrid and EUR 30,000 to the member of the medical team. Additionally, Le Monde was ordered to publish the decision in the newspaper.
On 15 February 2018, the Head of the Registry of the Tribunal de Grande Instance de Paris (Regional Court, Paris, France) issued two declarations of enforceability relating to those orders. By judgments of 15 September 2020, the Cour d’appel de Paris (Court of Appeal, Paris, France) overturned those declarations, holding that the orders of the Spanish Court were manifestly contrary to French international public policy and therefore could not be enforced in France. In this regard, the Court of Appeal concluded that the penalties at issue had a deterrent effect on the involvement of Le Monde in the public discussion of matters of community interest, such as to curtail the media’s ability to perform its information and monitoring role. This meant that the recognition or enforcement of the judgments imposing those penalties would entail an unacceptable intervention with Le Monde’s freedom of expression.
Real Madrid brought an appeal in cassation at the Cour de cassation (Court of Cassation, France), against the latter judgment, stating that, amongst others, the Court of Appeal of Paris breached Article 34(1) and Article 36 of Brussels I, which allow a Member State to refuse recognition of a foreign judgment if it is manifestly contrary to its public policy, while prohibiting any substantive review of the foreign judgment by the court where recognition is sought (the 'principle of mutual trust').
The referring court decided to stay the proceedings and refer seven questions to the Court of Justice for a preliminary ruling. The first question asks whether Article 45(1) of Brussels I Regulation, in conjunction with Articles 34(1) and 45(2), and Article 11 of the Charter, allows a Member State to refuse or revoke the enforceability of a judgment from another Member State if it results in a manifest breach of freedom of expression. If so, the court seeks to clarify whether this can be based on punitive damages alone, or if it also applies to compensation for non-material damage. Lastly, questions three to seven ask whether a deterrent effect on the press is enough to invoke the public policy rule in Article 34(1) of Brussels I, and what factors should be considered in establishing such an effect.
The Judgment of the ECJ
The ECJ firstly establishes that the ‘principle of mutual trust’ is fundamental in EU law, enabling the creation and maintenance of a borderless area of freedom, security, and justice by presuming compliance with EU law and fundamental rights across Member States. This principle means that Member States cannot impose a higher standard of protection than that required by EU law, nor question the adherence to fundamental rights in other Member States, except in rare and exceptional circumstances. It is only when the enforcement of a judgment would result in a manifest breach of a fundamental right under the Charter that enforcement can be refused or revoked under Articles 34(1) and 45 of Brussels I (Paragraphs 42-44).
Building on this framework and referring to the aforementioned fundamental rights, the ECJ further clarifies, through Article 52 of the Charter and in light of established case law from the European Court of Human Rights (ECHR) (Paragraph 48), that strong protections for freedom of the press are vital in a democratic society. The ECJ notes that the press has a duty to provide information on matters of public interest, while still respecting the rights and reputations of others. Without such protections, the press would be unable to perform its role as a ‘public watchdog’. Consequently, when determining whether an interference with press freedom is proportionate to a legitimate aim, significant weight must be given to the societal interest in safeguarding a free press, as guaranteed by Article 11 of the Charter and reflected in Article 10(2) of the ECHR (Paragraph 55).
Referring to Couderc et Hachette Filipacchi associés v. France (application no. 40454/07) and Société de conception de presse et d’édition v. France (application no. 4683/11), the ECJ relies on established ECHR case law to conclude that any unjustified restriction on freedom of expression, in terms of proportionality of a sanction, risks obstructing or deterring media coverage of similar cases in the future (Paragraph 60). Where sanctions may discourage the press from participating in debate on matters of legitimate public interest, particular caution should be exercised, the ECJ considers, citing ECHR Bladet Tromsø and Stensaas v. Norway (application no. 21980/93) and ECHR Cumpănă et Mazăre v. Romania (application no. 33348/96) (Paragraph 61).
The ECJ further considers that awards of damages that are unforeseeable or significantly higher than those in similar defamation cases are likely to have a chilling effect on freedom of the press (Paragraph 62). This is particularly true when the compensation granted to the injured party exceeds the actual material or non-material damage suffered (Paragraph 63). Additionally, when evaluating whether the compensation is proportionate, the ECJ emphasises that other sanctions must be considered, such as the publication of a denial, a rectification, a formal apology, or the legal costs imposed on the convicted party (Paragraph 65).
The ECJ concludes that, under Articles 34(1) and 45 of Regulation No 44/2001, read in conjunction with Article 11 of the Charter, enforcement of a judgment requiring a newspaper publisher and one of its journalists to pay damages for non-material harm suffered by a sports club and a member of its medical team, due to reputational damage from published information, must be refused if it would lead to a manifest breach of freedom of the press as enshrined in Article 11 of the Charter (Paragraphs 66-67). The referring court must assess this, taking into account all circumstances of the case, including the resources of the defendants and the seriousness of the wrong, without re-examining the substantive assessments made by the court of the Member State of origin (Paragraphs 68 and 71). If it is determined that the damages are manifestly disproportionate to the reputational harm, potentially deterring future media coverage, enforcement should be limited to the disproportionate portion of the award (Paragraphs 69, 72-73).