Bundesgerichtshof; 2018-07-19; IX ZB 10/18
Decision by national courts in the field of European Union law — ECLI:DE:BGH:2018:190718BIXZB10.18.0
Date: 2018-07-19
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82018DE0719(51)_ENG_SUMJURE
JURE summary
JURE summary
The case concerns a dispute between a German television station (hereinafter ‘the defendant’) and a Polish national and former prisoner of the Auschwitz-Birkenau and Flossenbürg concentration camps (hereinafter ‘the plaintiff’), who sought the declaration of enforceability for the territory of the Federal Republic of Germany of a judgment imposed on the defendant by the District Court of Krakow, Poland. The Polish judgment ordered the defendant to issue apologies, formulated by the Polish court, on the defendant’s website to the plaintiff in reference to falsification of history on the basis of the use of the wording ‘Polish concentration camps Majdanek and Auschwitz’ in a program announcement on the defendant's website and in reference to violation of the plaintiff’s personal rights.
The defendant issued the apologies according to the Polish judgment, but the plaintiff considered it inadequate for various reasons and requested the declaration of enforceability of the Polish judgment in the Landgericht Mainz (hereinafter ‘the Court of First Instance’). The Court of First Instance granted the plaintiff’s request and the defendant's appeal in the Oberlandesgericht Koblenz (hereinafter ‘the Court of Appeal’) was unsuccessful.
The defendant then lodged an appeal on points of law in the Bundesgerichtshof (hereinafter ‘the Supreme Court’), seeking to overturn the decisions of the lower instances and the dismissal of the request for the declaration of enforceability. The Supreme Court ruled that the appeal was admissible under Article 44 of the Brussels I Regulation (1). According to Article 34(1) of the Brussels I Regulation, ‘a judgment shall not be recognised ... if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought‘.
According to the Supreme Court, the enforcement of the Polish judgment manifestly contradicted the public policy of the Federal Republic of Germany, namely the defendant’s fundamental right to negative freedom of expression under Article 5(1) of the GG (2), according to which ‘every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.’ Hence the defendant cannot be obligated to adopt a foreign opinion (i.e. the apology formulated by the Polish court).
The Supreme Court annulled the lower courts’ decisions and rejected the plaintiff's request for declaration of enforceability of the Polish judgment.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Grundgesetz für die Bundesrepublik Deutschland (Basic Law for the Federal Republic of Germany).