Opinion of the Advocate General — ECLI:EU:C:2024:127
Date: 2024-02-08
Language of the case: French
Subject matter: Area of freedom, security and justice;Judicial cooperation in civil matters;Fundamental rights;Charter of Fundamental Rights
Procedure: Reference for a preliminary ruling
Origin: France

Summary of applicable texts 
EU law 
19 Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and 
the recognition and enforcement of judgments in civil and commercial matters, 
known as Brussels I, provides, in Article 34: 
‘A judgment shall not be recognised: 
(1) if such recognition is manifestly contrary to public policy in the Member 
State in which recognition is sought; 
…’ 
20 Article 36 provides: 
‘Under no circumstances may a foreign judgment be reviewed as to its substance’. 
21 Article 11 of the Charter of Fundamental Rights of the European Union provides: 
‘1. Everyone has the right to freedom of expression. This right shall include 
freedom to hold opinions and to receive and impart information and ideas without 
interference by public authority and regardless of frontiers. 
2. The freedom and pluralism of the media shall be respected.’ 
22 Article 17 provides: 
‘1. Everyone has the right to own, use, dispose of and bequeath his or her 
lawfully acquired possessions. No one may be deprived of his or her possessions, 
except in the public interest and in the cases and under the conditions provided for 
by law, subject to fair compensation being paid in good time for their loss. The 
use of property may be regulated by law in so far as is necessary for the general 
interest.’ 
23 Article 47 provides: 
‘Everyone whose rights and freedoms guaranteed by the law of the Union are 
violated has the right to an effective remedy before a tribunal in compliance with 
the conditions laid down in this Article. 
Everyone is entitled to a fair and public hearing within a reasonable time by an 
independent and impartial tribunal previously established by law. Everyone shall 
have the possibility of being advised, defended and represented.’ 
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The Convention for the Protection of Human Rights and Fundamental Freedoms 
24 Article 10 provides: 
‘1. Everyone has the right to freedom of expression. This right shall include 
freedom to hold opinions and to receive and impart information and ideas without 
interference by public authority and regardless of frontiers. This article shall not 
prevent States from requiring the licensing of broadcasting, television or cinema 
enterprises. 
2. The exercise of these freedoms, since it carries with it duties and 
responsibilities, may be subject to such formalities, conditions, restrictions or 
penalties as are prescribed by law and are necessary in a democratic society, in the 
interests of national security, territorial integrity or public safety, for the 
prevention of disorder or crime, for the protection of health or morals, for the 
protection of the reputation or rights of others, for preventing the disclosure of 
information received in confidence, or for maintaining the authority and 
impartiality of the judiciary.’ 
Grounds justifying the reference for a preliminary ruling 
25 According to the case-law of the Court of Justice (judgment of 28 March 2000, 
Krombach (C-7/98, EU:C:2000:164)): 
‘36. By disallowing any review of a foreign judgment as to its substance, 
Article 29 and the third paragraph of Article 34 of the Convention prohibit the 
court of the State in which enforcement is sought from refusing to recognise or 
enforce that judgment solely on the ground that there is a discrepancy between the 
legal rule applied by the court of the State of origin and that which would have 
been applied by the court of the State in which enforcement is sought had it been 
seised of the dispute. Similarly, the court of the State in which enforcement is 
sought cannot review the accuracy of the findings of law or fact made by the court 
of the State of origin. 
37. Recourse to the public-policy clause in Article 27, point 1, of the 
Convention can be envisaged only where recognition or enforcement of the 
judgment delivered in another Contracting State would be at variance to an 
unacceptable degree with the legal order of the State in which enforcement is 
sought inasmuch as it infringes a fundamental principle. In order for the 
prohibition of any review of the foreign judgment as to its substance to be 
observed, the infringement would have to constitute a manifest breach of a rule of 
law regarded as essential in the legal order of the State in which enforcement is 
sought or of a right recognised as being fundamental within that legal order.’ 
26 The Court added: 
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‘25. The Court has consistently held that fundamental rights form an integral part 
of the general principles of law whose observance the Court ensures (see, in 
particular, Opinion 2/94 [1996] ECR I-1759, paragraph 33). For that purpose, the 
Court draws inspiration from the constitutional traditions common to the Member 
States and from the guidelines supplied by international treaties for the protection 
of human rights on which the Member States have collaborated or of which they 
are signatories. In that regard, the European Convention for the Protection of 
Human Rights and Fundamental Freedoms (hereinafter “the ECHR”) has 
particular significance (see, inter alia, Case 222/84 Johnston v Chief Constable of 
the Royal Ulster Constabulary [1986] ECR 1651, paragraph 18).’ 
27 The European Court of Human Rights, in a judgment of the Grand Chamber, 
Morice v. France, of 23 April 2015 (No 29369/10), reiterated the general 
principles concerning the necessity of an interference with the right to freedom of 
expression. It stated (§ 125) that, ‘as regards the level of protection, there is little 
scope under Article 10 § 2 of the Convention for restrictions on political speech or 
on debate on matters of public interest’. 
28 The [same] court considered that a publication about sporting matters fell into the 
latter category (26 April 2007, No 11182/03 and 11319/03, Colaco Mestre and 
SIC. Sociedade Independente de Comunicacao, S.A. v. Portugal, § 28). 
29 Lastly, the deterrent effect of an order to pay damages is a criterion in the 
assessment of the proportionality of such compensation for defamatory 
statements. As regards the freedom of expression of journalists, the European 
Court of Human Rights ensures that the amount of damages imposed on media 
organisations is not such as to threaten their economic foundations (Błaja News 
Sp. z o. o. v. Poland, 26 November 2013, No 59545/10, § 71; Timpul Info-
Magazin and Anghel v. Moldova, 27 November 2007, No 42864/05). 
The questions referred for a preliminary ruling 
30 The Court wonders whether Articles 34 and 36 of the [Brussels I] regulation and 
Article 11 of the Charter of Fundamental Rights of the European Union must be 
interpreted as meaning that a financial penalty imposed for harm caused to the 
reputation of a sports club and of a member of its medical team by the publication 
of a story in a newspaper can manifestly infringe freedom of expression and 
therefore constitute a ground for refusing to recognise and enforce a judgment. 
31 In the event of an affirmative answer, the Court wonders whether those provisions 
must be interpreted as meaning that the court in which enforcement is sought may 
find that the penalty is disproportionate only where the damages have been 
categorised as punitive by the court of origin and not where they have been 
awarded as compensation for non-material damage. 
32 It wonders, given the prohibition on any review of the substance of the foreign 
judgment, what factors may be relied upon by the court in which enforcement is 
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sought when assessing whether the penalty is disproportionate. In particular, it 
wonders whether the provisions in question must be interpreted as meaning that 
the court in which enforcement is sought may take account only of the deterrent 
effect of the penalty in the light of the resources of the person on whom the 
penalty is imposed, or whether it may have regard to other factors such as the 
seriousness of the wrong or the extent of the harm. 
33 It wonders whether the deterrent effect in the light of the resources of the 
newspaper can in itself form a ground for refusing to recognise and enforce a 
judgment due to a manifest infringement of the fundamental principle of freedom 
of the press. 
34 It wonders whether the deterrent effect must be understood as meaning that the 
financial stability of the newspaper is threatened or whether it may simply refer to 
an intimidating effect. 
35 It wonders whether the deterrent effect on the newspaper publishing house and on 
the journalist as an individual must be assessed in the same way. 
36 Lastly, it wonders whether the general economic situation of the print media is a 
relevant factor when assessing whether, beyond the newspaper in question, the 
penalty is likely to have an intimidating effect on the media overall. 
ON THOSE GROUNDS, the Court [of Cassation]: 
REFERS the following questions to the Court of Justice of the European Union: 
1) Must Articles 34 and 36 of the [Brussels I] regulation and Article 11 of the 
Charter of Fundamental Rights of the European Union be interpreted as meaning 
that a financial penalty imposed for harm caused to the reputation of a sports club 
by the publication of a story in a newspaper can manifestly infringe freedom of 
expression and therefore constitute a ground for refusing to recognise and enforce 
a judgment? 
2) In the event of an affirmative answer, must those provisions be interpreted 
as meaning that the court in which enforcement is sought may find that the penalty 
is disproportionate only where the damages have been categorised as punitive 
either by the court of origin or by the court in which enforcement is sought and 
not where they have been awarded as compensation for non-material damage? 
3) Must those provisions be interpreted as meaning that the court in which 
enforcement is sought may take account only of the deterrent effect of the penalty 
in the light of the resources of the person on whom the penalty is imposed, or may 
it have regard to other factors such as the seriousness of the wrong or the extent of 
the harm? 
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4) Can the deterrent effect in the light of the resources of the newspaper in 
itself form a ground for refusing to recognise and enforce a judgment due to a 
manifest infringement of the fundamental principle of freedom of the press? 
5) Must the deterrent effect be understood as meaning that the financial 
stability of the newspaper is threatened or may it simply refer to an intimidating 
effect? 
6) Must the deterrent effect on the newspaper publishing house and on a 
journalist as an individual be assessed in the same way? 
7) Is the general economic situation of the print media a relevant factor when 
assessing whether, beyond the newspaper in question, the penalty is likely to have 
an intimidating effect on the media overall? 
[…] [staying of proceedings] 
[…] [closing formulae] 
[…]