62022CC0633
OPINION OF ADVOCATE GENERAL
SZPUNAR
delivered on 8 February 2024 (
1
)
Case C‑633/22
Real Madrid Club de Fútbol,
AE
v
EE,
Société Éditrice du Monde SA
(Request for a preliminary ruling from the Cour de cassation (Court of Cassation, France))
(Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation (EC) No 44/2001 – Recognition and enforcement of judgments – Grounds for refusal – Infringement of public policy in the State in which enforcement is sought – Penalty imposed on a newspaper and one of its journalists for harm caused to the reputation of a sports club)
I. Introduction
1.
Regulation (EC) No 44/2001, (
2
) also known as the Brussels I Regulation, in keeping with the tradition established by the Member States themselves since the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters, (
3
) laid down uniform rules on the recognition and enforcement of judgments in civil and commercial matters given in the Member States. Under those rules, for a judgment given in one Member State (‘the Member State of origin’) to be able to be enforced in another Member State (‘the Member State in which enforcement is sought’), the latter Member State must authorise its enforcement.
2.
The Brussels I Regulation was replaced by Regulation (EU) No 1215/2012 (
4
) (‘the Brussels Ia Regulation’), which goes further than its predecessor and establishes a system of automatic enforcement (‘without the need for any special procedure’) of judgments in civil and commercial matters given in the Member States.
3.
However, under the provisions of those two regulations, drawing from the traditional approach in private international law, a Member State in which enforcement is sought still has the right to refuse enforcement of a judgment if it infringes its public policy.
4.
It can certainly be argued that the existence of a public policy exception is a necessary and unavoidable condition for the liberalisation of the requirements laid down for declaring foreign judgments enforceable in the territory of a Member State in which enforcement is sought, which is less reticent to accept foreign judgments if it has a safety valve giving it the final word on the effects of such judgments in its territory.
5.
The unusual feature of this case is that the enforcement of the judgments given in a Member State of origin was refused on the ground that enforcement of those judgments was contrary to the freedom of expression guaranteed in Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’). This case gives the Court an opportunity not only to clarify the conditions for recourse to the public policy clause in such a situation but also to define precisely the scope of its jurisdiction in preliminary ruling proceedings.
II. Legal framework
6.
Chapter III of the Brussels I Regulation, entitled ‘Recognition and enforcement’, comprises three sections entitled ‘Recognition’ (Articles 33 to 37), ‘Enforcement’ (Articles 38 to 52) and ‘Common provisions’ (Articles 53 to 56), as well as the definition of the concept of ‘judgment’ (Article 32).
7.
Article 33 of that regulation, which opens Section 1 of Chapter III on recognition of judgments given in a Member State other than that in which recognition is sought, provides, in paragraph 1 thereof, that ‘a judgment given in a Member State shall be recognised in the other Member States without any special procedure being required’.
8.
Article 34(1) of that regulation stipulates that a judgment is not to be recognised if ‘such recognition is manifestly contrary to public policy in the Member State in which recognition is sought’.
9.
Article 36 of that regulation states that ‘under no circumstances may a foreign judgment be reviewed as to its substance’.
10.
Article 38 of the Brussels I Regulation, which opens Section 2 of Chapter III on enforcement of judgments given in other Member States, provides, in paragraph 1 thereof:
‘A judgment given in a Member State and enforceable in that State shall be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.’
11.
Article 41 of that regulation stipulates that ‘the judgment shall be declared enforceable immediately on completion of the formalities in Article 53 without any review under Articles 34 and 35. The party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application’.
12.
Article 43(1) of that regulation states that ‘the decision on the application for a declaration of enforceability may be appealed against by either party’.
13.
Under Article 45 of that regulation:
‘1.   The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Articles 34 and 35. It shall give its decision without delay.
2.   Under no circumstances may the foreign judgment be reviewed as to its substance.’
14.
Article 48 of the Brussels I Regulation provides:
‘1.   Where a foreign judgment has been given in respect of several matters and the declaration of enforceability cannot be given for all of them, the court or competent authority shall give it for one or more of them.
2.   An applicant may request a declaration of enforceability limited to parts of a judgment.’
III. Facts in the main proceedings
15.
On 7 December 2006, the newspaper Le Monde published an article in which the author, EE, a journalist employed by that newspaper, claimed that the football clubs Real Madrid and FC Barcelona had retained the services of Doctor X. Fuentes, the head of a doping ring in the cycling world. An extract from the article appeared on the front page, along with a drawing captioned ‘Dopage: le football après la cyclisme’ (‘Doping: first cycling, now football’), depicting a cyclist dressed in the colours of the Spanish flag, surrounded by little footballers and syringes. Many media outlets, Spanish media outlets in particular, shared that article.
16.
On 23 December 2006, the newspaper Le Monde published the letter of denial it had received from Real Madrid, but made no comment on it.
17.
That club and a member of its medical team, the applicants in the main proceedings, brought an action for damages before the Juzgado de Primera Instancia no19 de Madrid (Court of First Instance No 19, Madrid, Spain), based on harm done to their honour, against the newspaper company Société Éditrice du Monde and the journalist who was the author of the article in question, the defendants in the main proceedings.
18.
By judgment of 27 February 2009, that court ordered the defendants in the main proceedings to pay EUR 300000 to Real Madrid and EUR 30000 to the member of its medical team and ordered that its decision be published in the newspaper Le Monde. The defendants in the main proceedings appealed against that judgment before the Audiencia Provincial de Madrid (Provincial Court, Madrid, Spain), which essentially upheld that judgment. The Tribunal Supremo (Supreme Court, Spain) dismissed the appeal lodged against the latter decision by judgment of 24 February 2014.
19.
By order of 11 July 2014, the Juzgado de Primera Instancia no19 de Madrid (Court of First Instance No 19, Madrid) ordered, jointly and severally, (
5
) the enforcement of the judgment of the Tribunal Supremo (Supreme Court) and payment to Real Madrid of the sum of EUR 390000 by way of the principal amount, interest and costs, then, by order of 9 October 2014, the enforcement of that judgment and payment to the member of the club’s medical team of the sum of EUR 33000 by way of the principal amount, interest and costs.
20.
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.
21.
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 11 July and 9 October 2014 were manifestly contrary to French international public policy, it ruled that they could not be enforced in France.
22.
In that regard, the cour d’appel de Paris (Court of Appeal, Paris) found, first, that the Spanish courts had made the orders imposing the penalties at issue on the basis of Article 9(3) of Ley Orgánica 1/1982 de protección civil del derecho al honor, a la intimidad personal y familiar y a la propia imagen (Basic Law 1/1982 on civil protection of the right to honour, personal and family privacy and personal image) of 5 May 1982 (BOE of 14 May 1982, p. 11196), even though Real Madrid had not claimed any financial loss. In addition, the Audiencia Provincial de Madrid (Provincial Court, Madrid) had held in its judgment, confirmed by the Tribunal Supremo (Supreme Court), that, in so far as the damage was generally associated with non-material damage, it was difficult to quantify it in economic terms.
23.
The cour d’appel de Paris (Court of Appeal, Paris) noted, second, that the only matter discussed before the Spanish court had been the media impact of the article in question, which had been refuted by the Spanish media, meaning that any damage arising from media impact had been limited by the denials made by local media organisations whose readership is primarily Spanish.
24.
Third, that court found, in the first place, that the orders to pay the sums of EUR 300000 by way of principal amount and EUR 90000 in interest were made against a private individual and a newspaper publishing company and that company’s accounts showed that such an amount represented 50% of its net loss and 6% of its liquid assets as at 31 December 2017; in the second place, that the orders for the journalist to pay the sums of EUR 30000 by way of principal amount and EUR 3000 in interest were in addition to the previous orders, and, in the third place, that it was extremely rare for damages awarded for harm done to somebody’s honour or good name to exceed EUR 30000 since under French law the defamation of individuals was punishable only by a maximum fine of EUR 12000.
25.
The cour d’appel de Paris (Court of Appeal, Paris) concluded that the penalties at issue had a deterrent effect on the involvement of the defendants in the main proceedings in the public discussion of matters of community interest such as to curtail the media’s ability to perform its information and monitoring role, meaning that the recognition or enforcement of the judgments imposing those penalties was at variance to an unacceptable degree with French international public policy by interfering with freedom of expression.
26.
The applicants in the main proceedings brought an appeal in cassation against the judgments of the cour d’appel de Paris (Court of Appeal, Paris) before the Cour de cassation (Court of Cassation, France), which is the referring court in this case. They submitted, in the first place, that a review of the proportionality of damages may be undertaken only where those damages are punitive in nature and not compensatory; in the second place, that by substituting its own assessment of the harm for that of the court of origin, the cour d’appel de Paris (Court of Appeal, Paris) had reviewed the Spanish judgments in breach of Article 34(1) and Article 36 of the Brussels I Regulation, and, in the third place, that the cour d’appel de Paris (Court of Appeal, Paris) had not taken account of the seriousness of the wrongs accepted by the Spanish court and the economic situation of the persons on whom financial penalties were imposed was not a relevant criterion in the assessment of whether the penalties were disproportionate, which in any event should not be carried out by reference to national standards.
27.
The defendants in the main proceedings submitted, in essence, that the cour d’appel de Paris (Court of Appeal, Paris) had not reviewed the substance of the Spanish judgments but had correctly refused to recognise their enforceability due to the disproportionate nature of the penalties they imposed, which manifestly breached freedom of expression and, therefore, international public policy.
28.
In the statement of the grounds which led it to refer the questions for a preliminary ruling, the referring court recalls, first, the Court’s case-law arising from the judgment in Krombach. (
6
) It draws attention to the passage in that judgment which, making reference to the judgment in Johnston, (
7
) establishes, in its view, a link between the fundamental rights the observance of which the Court ensures and the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘the ECHR’). (
8
)
29.
Second, the referring court observes that, according to the case-law of the European Court of Human Rights (‘the ECtHR’), as regards the level of protection, there is little scope under Article 10(2) ECHR for restrictions on freedom of expression in the fields of political speech and matters of public interest. A publication about sporting matters falls into the latter category. (
9
) In addition, in its view, the deterrent effect of an order to pay damages is a criterion in the assessment of the proportionality of compensation for defamatory statements. Furthermore, it asserts, as regards freedom of expression of journalists, that it must be ensured that the amount of damages imposed on media organisations is not such as to threaten their economic foundations. (
10
)
IV. The questions referred for a preliminary ruling and the procedure before the Court
30.
In those circumstances, by decision of 28 September 2022, received at the Court on 11 October 2022, the Cour de cassation (Court of Cassation) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)
Must Articles 34 and 36 of [the Brussels I Regulation] and Article 11 of the [Charter] 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 [of the Member State] 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 the Member State] of origin or by the court [of the Member State] 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 [of the Member State] 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?
(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?’
31.
Written observations were submitted by the parties to the main proceedings, the French, Spanish and German Governments and the European Commission. The parties to the main proceedings, the French, Spanish and Maltese Governments and the Commission were represented at the hearing which was held on 17 October 2023.
V. Analysis
A. Reformulation of the questions referred for a preliminary ruling
32.
Before examining the questions referred, I consider it helpful to make a few preliminary remarks in so far as they concern Articles 34 and 36 of the Brussels I Regulation, which appear in Section 1 of Chapter III of that regulation, entitled ‘Recognition’.
33.
In the present case, the referring court is hearing an appeal in cassation brought against judgments by which French courts revoked declarations of enforceability of Spanish judgments in France. It follows that the relevant provisions of the Brussels I Regulation are actually those relating to enforcement of judgments given in a Member State other than that in which enforcement is sought, which appear in Section 2 of that chapter, entitled ‘Enforcement’, in particular Article 45 of that regulation.
34.
That being said, first of all, with regard to Article 34 of the Brussels I Regulation, Article 45(1) thereof provides that the grounds for refusal of recognition, including the ground related to public policy in the Member State in which recognition is sought (Article 34(1)), are also grounds for refusal of enforcement. In addition, with regard to Article 45(2) of the Brussels I Regulation, its content is almost identical to Article 36 of that regulation and confirms that the prohibition of a review as to substance is also applicable in connection with a challenge to the enforceability of a judgment given in a Member State other than that in which enforcement is sought.
35.
The reference to Articles 34 and 36 of the Brussels I Regulation should therefore be understood as relating to Article 45(1) of that regulation, read in conjunction with Article 34(1) and Article 45(2) thereof. I should note that the referring court seems to be aware that the provisions on enforcement of judgments are also relevant in the main proceedings. Although the questions referred indicate only Articles 34 and 36 of that regulation, it is clear from them that the court is asking whether there is a ground for refusal of recognition and enforcement in the present case.
36.
Next, the formulation of the first question suggests that the referring court has in mind only the procedural situation where a penalty has been imposed on a ‘newspaper’ for harm caused to the reputation of a sports club. However, that court is hearing appeals in cassation lodged against judgments given in two separate proceedings brought by the sports club and by the member of its medical team against, on the one hand, the publishing house of the newspaper in which the article in question appeared and, on the other, its journalist who was the author of that article. Furthermore, by its sixth question, it seeks to ascertain whether it must make a different assessment of the conditions for recourse to the public policy clause depending on the individual characteristics of a defendant.
37.
Lastly, I propose to analyse all the questions referred. While the first question is fairly general in nature, other questions concern detailed aspects of the examination to be carried out by the court of the Member State in which enforcement is sought that is hearing an appeal lodged against the decision on the enforceability of a judgment given in the Member State of origin. Nevertheless, those questions revolve around the same legal issue and concern the various aspects to be reviewed by the referring court which is hearing the appeals in cassation. In addition, answering the first question without supplementing that answer by considerations relating to those detailed aspects could give rise to errors as to the conditions for recourse to the public policy clause.
38.
In those circumstances, the questions referred for a preliminary ruling should be understood to the effect that, by those questions, the referring court seeks to ascertain, in essence, whether Article 45(1) of the Brussels I Regulation, read in conjunction with Article 34(1) and Article 45(2) thereof, and Article 11 of the Charter must be interpreted as meaning that a Member State in which enforcement is sought of a judgment given in another Member State, concerning a penalty imposed on a newspaper publishing house and a journalist for harm caused to the reputation of a sports club and a member of its medical team by the publication of a story in that newspaper, may refuse or revoke a declaration of enforceability of that judgment on the ground that it would give rise to a manifest breach of the freedom of expression guaranteed in Article 11 of the Charter.
39.
In order to provide a useful answer to that question, I will first present some general considerations on the public policy clause (B), then examine Article 11 of the Charter in the light of the doubts raised by the referring court (C) and the assessment criteria for a manifest breach of the freedom guaranteed in that provision (D). Lastly, I will consider the presumption of equivalent protection arising in the case-law of the ECtHR (E).
B. General considerations on the public policy clause
40.
In so far as, as I have stated, the Brussels I Regulation has replaced the Brussels Convention, the interpretation of that Convention by the Court continues to apply to the corresponding provisions of that regulation. That is true of Article 34(1) of that regulation, which replaced Article 27(1) of that convention. Although, unlike the abovementioned regulation, the Convention did not expressly provide that recognition or enforcement of a judgment must be ‘manifestly’ contrary to public policy in the Member State in which recognition is sought for that judgment not to be recognised, the Court has nevertheless always interpreted the Brussels Convention to that effect.
1.
The concept of ‘public policy’
(a)
The classic formula for the public policy clause
41.
The concept of ‘public policy’ is the subject of an extensive body of the Court’s case-law through which the Court has also taken care to define precisely the scope of its own jurisdiction in preliminary ruling proceedings and the jurisdiction of the court of the Member State in which enforcement is sought.
42.
It follows from the case-law arising from the judgment in Krombach (
11
) that, while the Member States in principle remain free, by virtue of the proviso in Article 34(1) of the Brussels I Regulation, to determine, according to their own national conceptions, what public policy requires, the limits of the concept of ‘public policy’ are a matter for interpretation of that regulation.
43.
Consequently, according to a classic formula from the case-law, while it is not for the Court to define the content of the public policy of a Member State, it is nonetheless required to review the limits within which the courts of a Member State in which enforcement is sought may have recourse to the concept of ‘public policy’. (
12
)
44.
In that regard, the Court has held that, in so far as concerns the concept of ‘public policy’ set out in Article 34 of the Brussels I Regulation, that provision must be interpreted strictly inasmuch as it constitutes an obstacle to the attainment of one of the fundamental objectives of that regulation, namely the free movement of judgments. (
13
) It has made clear that recourse is to be had to the public policy clause only in exceptional cases. (
14
)
45.
Furthermore, the Court has found that, by disallowing any review as to substance, that regulation prohibits the court of the Member State in which enforcement is sought from having recourse to the public policy clause solely on the ground that there is a discrepancy between the applicable laws and from reviewing the accuracy of the findings of law or fact made by the court of the Member State of origin. (
15
)
46.
Consequently, the public policy clause would apply only where the enforcement of the judgment concerned in the State in which enforcement is sought would result in the 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. (
16
)
47.
That classic formula should be supplemented by two elements which further restrict the interpretation of the concept of ‘public policy’.
(b)
Fundamental rights
48.
The first element relates to fundamental rights.
49.
The Court has ruled that the court of the Member State in which enforcement is sought, implementing EU law in applying the Brussels I Regulation, must comply with the requirements flowing from Article 47 of the Charter. (
17
) Furthermore, the provisions of that regulation must be interpreted in the light of fundamental rights, which form an integral part of the general principles and which are now set out in the Charter. (
18
)
50.
Thus far, the Court’s case-law in that area has focused on the rights of the defence and procedural safeguards. (
19
) However, Article 47 of the Charter is certainly not limited to the protection of such rights.
51.
According to the case-law of the ECtHR, Article 6(1) ECHR, to which the second paragraph of Article 47 of the Charter corresponds, is applicable to the execution of foreign final judgments (
20
) and the refusal to authorise the execution of such a judgment may amount to an interference with the applicant’s right to a fair hearing. (
21
)
52.
As one academic writer has observed, (
22
) judgments, whether declaratory or constitutive, are vehicles for substantive rights. They fulfil the same role in a cross-border context where the recognition or enforcement of a judgment originating in another Member State is sought in the Member State addressed. Echoing that idea, the ECtHR has taken care in its case-law also to protect such substantive rights founded on the provisions of the ECHR in situations which were not confined to the territory of a single State. (
23
)
53.
As some writers assert, (
24
) through its case-law the ECtHR has also derived from Article 6(1) ECHR the existence of a procedural right to recognition and enforcement of a judgment given abroad, founded on the concept of ‘fair trial’ within the meaning of that provision.
54.
It should be noted that legal literature has not unanimously supported such a specific reading of the case-law of the ECtHR.
55.
There is debate in particular over, on the one hand, the scope of such a ‘right’ and its place in the system established by the Convention (
25
) and, on the other, the need to balance that ‘right’ with the fundamental rights of the defence. (
26
) Another criticism seems be that it is impossible for the ECtHR to infer the existence of a ‘right’ to recognition and enforcement from a finding by the ECtHR that there has been a violation of Article 6 ECHR. (
27
) I am not convinced by that criticism, however. It should be noted that the Brussels I Regulation, in so far as it lays down the principle that the judgment given in another Member State is enforced after having been declared enforceable and sets out exhaustive grounds for refusal of enforcement, recognises the existence of a corresponding right. (
28
)
56.
When interpreting the rights guaranteed by the second paragraph of Article 47 of the Charter, the Court must take account of the corresponding rights guaranteed by Article 6(1) ECHR, as interpreted by the ECtHR, as the minimum threshold of protection. (
29
) In my view, the Court should then recognise that the applicant enjoys equivalent protection to that arising from the case-law of the ECtHR where the applicant seeks, pursuant to the Brussels I Regulation, recognition or enforcement of a judgment given in another Member State.
57.
The same should apply where the claim asserted by the applicant before the court of the Member State of origin had no substantive basis in EU law. It is true that, although the court of the Member State of origin bases its jurisdiction on the Brussels I Regulation, the Charter is not applicable before it and as regards the substance of the case. (
30
) However, before the court of the Member State in which enforcement is sought, that regulation, in so far as it establishes the principle referred to in point 55 of this Opinion and sets out exhaustively the grounds for refusal of enforcement, including the ground related to public policy, (
31
) and therefore the Charter, become applicable. (
32
)
58.
Such autonomy of the ‘right’ to enforcement of a judgment in civil and commercial matters, enshrined in the second paragraph of Article 47 of the Charter, corresponds to the approach taken by the ECtHR in its case-law on Article 6(1) ECHR. (
33
)
59.
That ‘right’ thus defined is not unfettered, however. (
34
) Limitations may be imposed on that right as long as they comply with the requirements of Article 52(1) of the Charter. It is common ground in that regard that the limitation of the right by reason of the manifest breach of public policy must be considered to be provided for by law, since it follows from Article 34(1) of the Brussels I Regulation. That limitation respects the essence of that right. It does not call it into question as such, since it has the effect of excluding, under specific conditions framed by the Court’s case-law, the enforcement of a judgment. (
35
) Nevertheless, that limitation must also be necessary and genuinely meet one of the objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.
(c)
Mutual trust
(1) Mutual trust in the light of the case-law
60.
The second element by which the classic formula arising from the Court’s case-law should be supplemented is mutual trust. This element relates to the fact that refusal to recognise or enforce a judgment given in a Member State runs counter to mutual trust between the Member States in the administration of justice in the European Union, which forms the basis for the rules on recognition and enforcement laid down by the Brussels I Regulation. That trust is not merely the result of the legislative choice made by the EU institutions. It has its basis in primary law. (
36
)
61.
The reason why the reference to mutual trust does not appear in that classic formula is that, when it was given specific expression in the judgment in Krombach, neither EU law nor the Court had yet openly recognised the role played by such trust in the civil and commercial dimension of the area of freedom, security and justice.
62.
More importantly, it is that mutual trust, which the Member States accord to one another’s legal systems and judicial institutions, which permits the inference that, in the event of the misapplication of national law or EU law, the system of legal remedies in each Member State, together with the preliminary ruling procedure provided for in Article 267 TFEU, affords a sufficient guarantee to individuals. (
37
)
63.
According to the Court, the Brussels I Regulation is based on the fundamental idea that individuals are required, in principle, to use all the legal remedies made available by the law of the Member State of origin. Save where specific circumstances make it too difficult or impossible to make use of the legal remedies in the Member State of origin, the individuals concerned must avail themselves of all the legal remedies available in that Member State with a view to preventing a breach of public policy before it occurs. (
38
)
(2) Mutual trust and the substantive dimension of public policy
64.
The statements set out in points 62 and 63 of this Opinion were made by the Court in the context of alleged violations of procedural safeguards the repercussions of which were likely to breach public policy in the Member State in which enforcement was sought. By contrast, in the present case the Court is asked to consider the interpretation of EU law in a situation where the alleged breach of public policy in the Member State in which enforcement is sought would result from the infringement of substantive rights.
65.
From the point of view of mutual trust and the systems of legal remedies in each Member State, that situation raises a further difficulty.
66.
It is true that, as the Court appears to seek to emphasise in the considerations from its case-law, mutual trust between the Member States concerns not only matters falling under EU law (‘misapplication of … EU law’) but also matters not falling under it (‘misapplication of national law’).
67.
However, where the claim asserted by an applicant before the court of the Member State of origin has no substantive basis in EU law, there may be doubt as to whether it is possible, in those proceedings, to refer a question to the Court for a preliminary ruling concerning a provision of the Charter which establishes a substantive right or freedom.
68.
In the present case, in so far as the claim asserted by the applicants in the main proceedings did not seem to have a substantive basis in EU law, (
39
) the defendants in the main proceedings were not able, before the court of the Member State of origin, to rely on Article 11 of the Charter in order to argue that that claim was contrary to their freedom of expression guaranteed in that provision. (
40
) However, they were able to rely (and, according to the clarifications given at the hearing, they did rely) on Article 10 ECHR and national constitutional provisions establishing that freedom and, in addition, to bring an application against the Member State of origin before the ECtHR. Furthermore, the interpretation of EU law applied by the court of the Member State in which enforcement is sought cannot disregard the need to provide protection at least equivalent to that offered by the ECHR. (
41
)
69.
With that in mind, the Charter and the ECHR form a complementary set of instruments for the protection of the fundamental values of the European Union and the Member States in civil and commercial matters. It is, moreover, that complementarity which, given that EU law does not apply to every situation, contributes to mutual trust between Member States.
70.
Similarly, the ECtHR recognises that, from the point of view of the protection of rights guaranteed by the ECHR, the respective roles of the courts of the Member State of origin and of the Member State in which enforcement is sought are different, without this giving rise to a dysfunction in the control mechanism for the observance of Convention rights. (
42
) It is true that, according to the ECtHR, if a serious and substantiated complaint is raised before the court of the Member State in which enforcement is sought to the effect that the protection of a right guaranteed by the ECHR has been manifestly deficient and that this situation cannot be remedied by EU law, it cannot refrain from examining that complaint on the sole ground that it is applying EU law. (
43
) However, that is not the situation in the present case. The public policy clause actually constitutes an instrument provided for by EU law, allowing the court of the Member State in which enforcement is sought to remedy any manifest deficiency in such protection.
2.
The content of public policy and the role of the Court in preliminary ruling proceedings
(a)
Overview of the issue
71.
In traditional scenarios where the question arises whether recognition or enforcement of a judgment given in another Member State is contrary to a national principle or even a national concept of the Member State in which recognition or enforcement is sought, the court of the Member State in which recognition or enforcement is sought cannot invoke the public policy clause without first identifying a fundamental principle in its own legal order which such recognition or enforcement would infringe. (
44
) In other words, it must identify and classify such a component of its legal order as fundamental. This stems directly from the fact that, as is confirmed by the classic formula in the Court’s case-law, it is for the Member States to define, ‘according to their own national conceptions’, the content of the public policy of their legal orders.
72.
For its part, the Court may, in its task of interpreting the concept of ‘public policy’ and without exceeding the limits of its own jurisdiction in preliminary ruling proceedings, give clarification to the referring court as to whether the tension between the consequences of recognition or enforcement of a judgment given in another Member State and the principle invoked against recognition or enforcement constitutes a manifest breach of that principle.
73.
In this case, the component of public policy in the Member State in which enforcement is sought the breach of which could justify recourse to the public policy clause relates to the substantive right guaranteed in Article 11 of the Charter. Although the cour d’appel de Paris (Court of Appeal, Paris) highlighted the fact that the enforcement of the Spanish judgments was at variance to an unacceptable degree with French international public policy, it referred only to the freedom of expression guaranteed by the Charter.
74.
In that regard, the Court has also had occasion to rule in a number of cases where recourse to the public policy clause was envisaged on the ground that the court of the Member State of origin had misapplied EU law and that the repercussions of that error were contrary to public policy in the Member State in which recognition was sought.
75.
It is clear from reading the case-law relating to the public policy clause that in the majority of cases the question referred to the Court had its origin in such a procedural error and concerned the rights of the defence in the broad sense. In essence, according to that case-law, a manifest and disproportionate breach of the defendant’s right to a fair trial referred to in the second paragraph of Article 47 of the Charter justifies recourse to the public policy clause. (
45
) It is thus accepted that in some cases a breach of fundamental rights may justify recourse to that clause.
76.
The fact that the public policy clause in its substantive dimension has been less successfully invoked than the public policy clause in its procedural dimension is probably due to the role played by the prohibition on review as to substance, which prevents the court of the Member State in which enforcement is sought from altering the substance of a case which has already been ruled on. (
46
) That is why there is a need for prudence in applying the case-law concerning public policy in its procedural dimension to public policy in its substantive dimension. The question arising is therefore what are the implications of this situation for the implementation of the public policy clause by the court of the Member State in which enforcement is sought and for the role of the Court in preliminary ruling proceedings. In order to answer that question, the Court’s relevant case-law must be examined closely.
(b)
The Court’s relevant case-law
(1) The judgment in Renault
77.
In the case which gave rise to the judgment in Renault, (
47
) one of the questions referred was whether an error allegedly made by the court of the Member State of origin in applying the principles of free movement of goods and freedom of competition is such as to alter the conditions for being able to rely on the public policy clause. The Court answered in the negative, holding that it is for the national court to ensure with equal diligence the protection of rights established in national law and rights conferred by EU law. (
48
) However, the finding that those conditions are the same in the case of an infringement of national law and EU law does not mean that the same holds for the role of the Court in preliminary ruling proceedings.
78.
In that regard, there is nothing in the judgment in Renault to indicate whether the referring court presumed that the possible misapplication of primary law constituted a manifest breach of the fundamental principle of public policy in the Member State in which enforcement was sought.
79.
A reading of the Opinion of Advocate General Alber in that case suggests that the referring court did not take a position on this point. That court merely observed that the Court’s case-law raised uncertainties as to the actual meaning of the principles allegedly breached by the court of the Member State of origin and that those principles had to be considered principles of public policy. (
49
)
80.
On the other hand, the Court held in the judgment in Renault that ‘an error of law such as that alleged in the main proceedings does not constitute a manifest breach of a rule of law regarded as essential in the legal order of the State in which enforcement is sought’. (
50
) That passage suggests that, where recourse to the public policy clause is envisaged on the ground that recognition or enforcement of a judgment is contrary to a component of the legal order of the Member State in which recognition or enforcement is sought, which comes under it by reason of that Member State’s membership of the European Union, both the question whether it constitutes a fundamental principle of that legal order and, if applicable, the question whether recognition or enforcement of a judgment is manifestly contrary to that fundamental principle may, or even must, be clarified by the Court in its task of interpreting EU law. That consideration is corroborated on reading more recent case-law.
(2) The judgment in Diageo Brands
81.
In the case which gave rise to the judgment in Diageo Brands, (
51
) one of the questions referred presupposed that the error in the application of the provisions of secondary law relating to the exhaustion of the rights conferred by a trade mark led to the adoption of a judgment that was ‘manifestly contrary to EU law’. In its judgment, making reference to the minimal character of the harmonisation created by those provisions, the Court held in essence that it cannot be considered that an error in the implementation of those provisions would be at variance to an unacceptable degree with the EU legal order inasmuch as it would infringe a fundamental principle of that legal order. (
52
) As in the judgment in Renault, the Court therefore characterised the component of the legal order of the Member State in which recognition was sought in order to establish whether that component constituted a fundamental principle of that legal order, then examined the alleged breach to determine whether it was manifest.
(3) The judgment in Charles Taylor Adjusting
82.
In the case which gave rise to the judgment in Charles Taylor Adjusting, (
53
) the question arose whether the court or tribunal of a Member State in which recognition and enforcement are sought may refuse to recognise and enforce the judgment of a court or tribunal of another Member State, which could be classified as ‘“quasi” anti-suit injunctions’, on the ground that it is contrary to public policy in the former Member State.
83.
The Court held, first, that the recognition and enforcement of the judgments at issue in that case were contrary, inter alia, to the general principle which emerges from its case-law concerning the rules of EU private international law that every court seised itself determines whether it has jurisdiction to resolve the dispute before it. (
54
)
84.
Second, the Court held that, subject to the examination to be conducted by the referring court, the recognition and enforcement of the judgments at issue were liable to be incompatible with public policy in the legal order of the Member State in which recognition and enforcement are sought, inasmuch as those judgments were such as to infringe that fundamental principle in the European judicial area based on mutual trust. (
55
)
85.
Thus, as in the judgments in Renault and Diageo Brands, the Court classified a component of the legal order of the Member State in which recognition and enforcement were sought as a ‘fundamental principle’ of that legal order and then held that recognition and enforcement of a judgment given in another Member State may be at variance to an unacceptable degree with that principle.
86.
One might ask what is the role, in the judgment in Charles Taylor Adjusting, of the clarification made by the Court ‘subject to the examination to be conducted by the referring court’. To answer that question, regard should be had to the Opinion delivered in that case, to which the Court made reference in its judgment.
87.
Advocate General Richard de la Tour stated in point 53 of his Opinion (
56
) that he concurred with the view of the referring court, which considered that, in accordance with the judgment in Gambazzi, (
57
) it is for that court to conduct a comprehensive assessment of the proceedings and all the circumstances and that recognition and enforcement of the judgments at issue were manifestly incompatible with the public policy of the forum State.
88.
In the case which gave rise to the judgment in Gambazzi, (
58
) the question arose whether, with regard to the public policy clause, the court of the Member State in which enforcement is sought may take into account the fact that the defendant was excluded from the proceedings in the State of origin on the ground that he had not complied with obligations imposed by an order made in the same proceedings. The Court ruled that such exclusion may justify recourse to the public policy clause if, following a comprehensive assessment of the proceedings and in the light of all the circumstances, it appears to the court of the Member State in which enforcement is sought that that exclusion measure constituted a manifest and disproportionate infringement of the defendant’s right to be heard. (
59
)
89.
In my view, the wording of the Court’s answer stemmed, first, from the need to take into account a number of facts in order to determine the proportionality of that infringement of the defendant’s right (‘[if it was] manifest and disproportionate’) and, second, from the essential distinction in preliminary ruling proceedings between the interpretation and the application of EU law. I consider that the reference made by the Court in the judgment in Charles Taylor Adjusting (
60
) to the ‘examination to be conducted by the referring court’ reflects that very distinction. That reference does not therefore call into question the considerations set out in point 85 of this Opinion.
90.
Consequently, it is the task of the Court only to interpret EU law, not to apply it. In its task of interpreting EU law, the Court is required, in the first place, to determine whether the component of EU law constitutes a fundamental principle of the EU legal order. In the second place, the Court must clarify whether the conditions under EU law for recourse to the public policy clause are met in the light of the facts set out by a referring court. Those considerations are corroborated by the judgment in Eco Swiss, (
61
) which is highly emblematic in that regard.
(4) The judgment in Eco Swiss
91.
In the case which gave rise to the judgment in Eco Swiss, one of the questions asked whether a national court to which application is made for annulment of an arbitration award must grant such an application where, in its view, that award is in fact contrary to Article 101 TFEU, although, under domestic procedural rules, it may grant such an application only if that award is contrary to public policy.
92.
Although that question was raised from the perspective of the public policy clause, that clause did not appear in an act of EU law that could be interpreted by the Court. The main proceedings concerned the possible annulment, in the Member State of the referring court, of an arbitration award made at the request of companies established outside the European Union. Irrespective of the cross-border dimension of the case, enforcement of arbitration awards did not fall within the scope of the Brussels Convention.
93.
In its judgment, the Court, first, classified Article 101 TFEU as ‘a fundamental provision which is essential for the accomplishment of the tasks entrusted to the [European Union] and, in particular, for the functioning of the internal market’. (
62
) Second, the Court held that, where its domestic rules of procedure require a national court to grant an application for annulment of an arbitration award where such an application is founded on failure to observe national rules of public policy, it must also grant such an application where it is founded on failure to comply with the prohibition laid down in that provision of primary law. (
63
)
94.
In its judgment, the Court did not therefore rule on the conditions for the implementation of the public policy clause (‘manifest breach’ or not). Those conditions did not fall within the scope of EU law. (
64
) On the other hand, as in all the judgments to which I have referred so far, the Court did establish whether the component of the legal order of the Member State concerned the breach of which was at issue constituted a fundamental principle of that legal order.
95.
This leads me to a more fundamental question: is there an EU public policy the fundamental principles of which can be identified by the Court?
(c)
EU public policy
96.
At the hearing, one of the questions discussed was whether the reference made by the Court to a ‘rule of law regarded as essential in the legal order of the State in which enforcement is sought’ and to a ‘right recognised as being fundamental within that legal order’ (
65
) demonstrates the Court’s wish to introduce a distinction between national public policy and EU public policy. Without wishing to deny the existence of EU public policy, I am not convinced that that reference actually seeks to draw a distinction between those two public policies.
97.
In the first place, I take the view that by that reference the Court was in fact seeking to indicate that recourse may be had to the public policy clause where recognition or enforcement of a judgment given in another Member State manifestly breaches an essential or fundamental principle, or even component, of the legal order of the Member State in which recognition or enforcement is sought, regardless of how it is specifically expressed in national law. (
66
)
98.
In the second place, the Court ruled in the judgment in Meroni that the public policy clause would apply only where a breach of procedural safeguards means that the recognition of such a judgment would result in the manifest breach of an essential rule of law in the EU legal order and therefore in the legal order of that State in which recognition is sought. (
67
) It follows that a ‘rule of law regarded as essential in the legal order of the State in which recognition is sought’ may also fall within the scope of EU law.
99.
In the third place, in the judgment in Diageo Brands the Court confirmed that, by the reference to ‘rules of law’ and to ‘rights’, the Court’s intention was not to distinguish between two distinct sources – national and EU – of public policy. The Court ruled that recognition of a judgment given in another Member State may be refused only by reason of a manifest breach of a rule of law regarded as essential in the EU legal order and therefore in the legal order of the Member State in which recognition is sought or of a right recognised as being fundamental in those legal orders. (
68
)
100.
That said, I have in the past supported recognition of the existence of the ‘public policy of the European Union’, (
69
) which is itself an integral part of national public policy. Although the Court has not taken up that concept in its case-law, it has held that an essential rule of law in the EU legal order also constitutes an essential rule of law in the legal order of the Member State in which enforcement is sought, the manifest breach of which may justify recourse to the public policy clause. (
70
)
101.
As is confirmed by Article 2 TEU, there is a common core of values shared, respected and protected by the Member States, which define the very identity of the European Union as a common legal order. (
71
) It is difficult to find a more representative example of the values shared by the Member States than those reflected in the Charter.
102.
From the point of view of the Member State in which enforcement is sought, there is only a single public policy. Such a common core is an integral part of the legal order of each Member State. In addition, as I have stated, (
72
) the conditions for recourse to the public policy clause are the same where such recourse is envisaged on account of the failure by the court of the Member State of origin to observe national law and EU law. However, in my view, the Court’s insistence that those conditions are identical stems from the wish not to favour EU law over national law. That approach corresponds, moreover, to the essential principle of the EU legal order, enshrined in Article 4(2) TEU, that the European Union must respect the national identities of Member States, inherent in their fundamental structures, political and constitutional. Furthermore, as is shown by the relevant case-law I have set out, the fact that the conditions for recourse to the public policy clause are the same for national law and for EU law does not mean that the same holds for the respective roles of the court of the Member State in which enforcement is sought and the Court in preliminary ruling proceedings.
103.
It is in the light of those considerations that the questions referred must be examined. More precisely, the Court must interpret EU law, first, in order to determine whether Article 11 of the Charter expresses a fundamental principle of the EU legal order (C) and, second, to clarify, in respect of the present reference for a preliminary ruling, the assessment criteria for establishing whether the enforcement of an order imposing a penalty such as that at issue in the main proceedings would give rise to a manifest breach of that principle (D).
C. Article 11 of the Charter
1.
Freedom of the press in the light of Article 11 of the Charter
104.
In its questions, the referring court refers to Article 11 of the Charter. However, that provision contains two paragraphs: the first concerns freedom of expression and information in general, while the second concerns freedom and pluralism of the media more specifically.
105.
As the Court has already made clear with regard to media organisations, interference with freedom of expression and information takes the particular form of interference with freedom of the media, specifically protected by Article 11(2) of the Charter. (
73
) In the same vein, the Explanations relating to the Charter (
74
) state that that provision ‘spells out the consequences of paragraph 1 regarding freedom of the media’. I infer from this that, where interference with the exercise of freedom of expression relates to media activity, it is Article 11(2) of the Charter that applies, not Article 11(1).
106.
In the case in the main proceedings, a national court had recourse to the public policy clause on the ground that enforcement of the Spanish judgments was contrary to freedom of the press. The questions referred therefore specifically concern Article 11(2) of the Charter.
107.
The question which now arises is whether, in the EU legal order, the freedom of the press guaranteed in that provision constitutes a fundamental principle the breach of which can justify recourse to the public policy clause.
2.
Freedom of the press as a fundamental principle of the EU legal order
108.
It can be inferred from the case-law that the fact that the freedom of the press guaranteed by the Charter has the same legal value as the Treaties does not automatically mean that it is a fundamental principle of the EU legal order. (
75
)
109.
That said, freedom of the press, which is enshrined in Article 11(2) of the Charter, protects the essential role of the media in a democratic society governed by the rule of law, which is to impart information and ideas on matters of public interest, which sits alongside the public’s right to receive such information and ideas, without restrictions other than those that are strictly necessary. (
76
)
110.
In addition, under Article 6(3) TEU, fundamental rights, ‘as guaranteed by the [ECHR]’, constitute general principles of EU law. With that in mind, the question arises whether Article 11(2) of the Charter has an equivalent provision in the ECHR. If that is the case, not only would freedom of the media constitute a general principle of EU law, but the case-law of the ECtHR would provide helpful guidance as to the interpretation of that provision of the Charter.
111.
It should be noted in that regard that, unlike Article 11 of the Charter, Article 10 ECHR does not make reference to freedom or pluralism of the media. However, in the light of the case-law of the ECtHR, it is established that the latter provision also concerns freedom of the press, even journalistic freedom. (
77
) In addition, the Court has held in its case-law that freedom of expression and information, enshrined in Article 11(1) and (2) of the Charter and Article 10 ECHR, has the same meaning and scope in each of those two instruments. (
78
)
112.
It is true that the explanations relating to Article 11 of the Charter state that paragraph 2 of that article ‘is based in particular on Court of Justice case-law regarding television, particularly in [the judgment in Collectieve Antennevoorziening Gouda (
79
)], and on the Protocol on the system of public broadcasting in the Member States’. However, those references seem to take account of pluralism of the media which, although inextricably linked to freedom of the media, would not appear to be directly at issue in the case in the main proceedings. In any event, pluralism of the media is also protected under Article 10 ECHR. (
80
)
113.
In those circumstances, given the importance of freedom of the press in a democratic society governed by the rule of law and the fact that that freedom is a general principle of EU law, it seems undeniable that that freedom is an essential principle of the EU legal order the manifest breach of which may constitute a ground for refusal of enforcement.
D. The assessment criteria for a manifest breach of freedom of the press
1.
The role of the court of the Member State in which enforcement is sought
(a)
Preliminary observation
114.
Article 10(2) ECHR provides that the exercise of freedom of expression may be subject to restrictions as are prescribed by law and are necessary in a democratic society, inter alia, ‘for the protection of the reputation or rights of others’. The ECtHR recognises that, when examining the necessity of an interference in a democratic society in the interests of the ‘protection of the reputation or rights of others’, it may be required to verify whether the domestic authorities struck a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other in certain cases. (
81
)
115.
As far as finding such balance is concerned, it should be observed that the Spanish judgments the enforcement of which is contested seek to protect both the reputation of the football club and the reputation of the member of its medical team.
116.
The reputation of the member of the medical team falls under Article 8 ECHR, to which Article 7 of the Charter corresponds. The criteria which are relevant when balancing the right to freedom of expression against the right to respect for private life are, inter alia: the contribution to a debate of general interest; how well-known the person concerned is and what the subject of the report is; his or her prior conduct; the method of obtaining the information and its veracity; the content, form and consequences of the publication; and the severity of the sanction imposed. (
82
)
117.
With regard to the reputation of the football club, the ECtHR has left open the question whether the reputation of a legal entity falls under Article 8 ECHR. (
83
) It is established, however, that the reputation of a legal entity comes under the concepts of ‘reputation’ or ‘rights of others’ within the meaning of Article 10(2) ECHR, although the protection of the reputation of a legal entity does not have the same strength as the protection of the reputation or rights of individuals. (
84
)
118.
Consequently, on the one hand, a fair balance between all the competing rights and interests must be found separately for the football club and the member of its medical team. This seems to be reflected in the Spanish orders, which relate to two distinct amounts for the two applicants in the main proceedings. On the other hand, the ECtHR bases the assessment of the proportionality of interferences on the same criteria for both a legal entity and an individual. (
85
)
119.
At first sight, it might be tempting to balance the rights involved by reference to those criteria and, on that basis, to determine whether enforcement of the Spanish judgments at issue in the main proceedings would give rise to a manifest breach of freedom of the press. It is important, however, to bear in mind the context of the present case before continuing with the analysis of those criteria.
(b)
The prohibition on review as to substance in the light of mutual trust
120.
The present reference for a preliminary ruling does not relate to how to balance, for the first time and on the basis of the evidence available to the court hearing an action for damages, freedom of the press against the reputation of others. The courts of the Member State of origin have already sought to find such a balance. In addition, as was clarified at the hearing, the defendants in the main proceedings attempted to submit the result of that balancing exercise for review by the Tribunal Constitucional (Constitutional Court, Spain) and the ECtHR, which did not consider the applications to be admissible.
121.
The reference for a preliminary ruling in the present case comes from a court of the Member State in which enforcement of a judgment given in another Member State was sought. To ignore this fact would be to fail to understand the system of recognition and enforcement under the Brussels I Regulation, which is based on mutual trust, and the respective roles of the courts of the Member State of origin and of the Member State in which enforcement is sought.
122.
The role of the court of the Member State in which enforcement is sought is delineated by the limitation provided for in Article 45(2) of the Brussels I Regulation, according to which ‘under no circumstances may the … judgment [given in another Member State] be reviewed as to its substance’. It is true that the public policy clause allows that court to refuse enforcement of a judgment given in another Member State. However, that clause and the resulting exception have a very narrow scope, which is determined by the role of that court.
123.
In that regard, recourse to the public policy clause is not based on a negative assessment of the proceedings before the court of the Member State of origin or of its judgment. Rather, it stems from the finding that the repercussions of enforcement of that judgment in the Member State in which enforcement is sought are manifestly contrary to a fundamental principle of its public policy.
124.
That is why Article 45(2) of the Brussels I Regulation prohibits the court of the Member State in which enforcement is sought from reviewing the accuracy of the findings of law or fact made by the court of the State of origin. (
86
) The court of the Member State in which enforcement is sought also cannot supplement those findings by pre-existing elements which were not taken into account by the court of the Member State of origin. (
87
)
125.
In the same vein, the Court held, in a judgment concerning Regulation (EC) No 2201/2003, (
88
) that the court of the Member State in which enforcement is sought cannot be involved in the determination of the final sum to be paid as a penalty payment imposed by the court of the Member State of origin. (
89
) Such determination entails an assessment of the reasons for the breaches by the debtor and only the court of the Member State of origin, as the court having jurisdiction as to the substance of the matter, is entitled to make assessments of that kind.
126.
A fortiori and with regard to the Brussels I Regulation, the court of the Member State in which enforcement is sought cannot call into question the findings of law or fact made by the court of the Member State of origin in order to recalculate the amount to be paid as the penalty imposed by that court. Nor can it repeat the exercise of balancing the rights involved, since it is the result of that exercise that determines the outcome of the proceedings.
127.
As the Court ruled in the judgment in Gambazzi, (
90
) the purpose of the verifications made by the court of the Member State in which enforcement is sought can only be to identify any manifest and disproportionate infringement of the right in question, without entailing a review of the assessments of the merits made by the court of the Member State of origin.
128.
Similarly, from the point of view of the ECHR, (
91
) in view of the different roles of the court of the Member State of origin and the court of the Member State in which enforcement is sought in the system of recognition and enforcement established by the Brussels I Regulation, which is based on mutual trust, it is sufficient for the court of the Member State in which enforcement is sought to have recourse to the public policy clause to remedy manifest
deficiencies in the protection of the rights guaranteed by the ECHR.
129.
In those circumstances and with regard to the breach of a substantive principle by an order obtained following an action for damages, the verifications made by the court of the Member State in which enforcement is sought must relate above all to the manifest and disproportionate repercussions on freedom of the press of the sanction imposed by the judgment the enforcement of which is sought. When a foreign judgment is enforced, it is the sanctions that most encroach on the legal order of the Member State in which enforcement is sought. That is also the approach adopted by the referring court in its questions, which focus on the financial dimension of the Spanish judgments.
130.
It should be borne in mind, however, that Article 11 is not the only provision of the Charter that is relevant.
(c)
The balancing of the fundamental rights at issue
131.
In this case, on the one hand, from the point of the view of the defendants in the main proceedings, authorisation of enforcement is likely to constitute interference with the exercise of the freedom of the press guaranteed in Article 11 of the Charter. On the other hand, from the point of the view of the applicants in the main proceedings, the refusal to enforce the Spanish judgments at issue would effectively limit their right to enforcement of those judgments, which is enshrined in the second paragraph of Article 47 of the Charter. (
92
)
132.
However, neither freedom of expression nor the right to enforcement of a judgment given in another Member State are absolute.
133.
Where several fundamental rights are at issue, it is necessary to weigh them against one another in the light of the requirements laid down in Article 52(1) of the Charter. (
93
)
134.
In the present case, the question whether there is a legal basis for the limitation of the exercise of freedom of expression by the defendants in the main proceedings is not raised. The orders imposing the penalties at issue in the main proceedings were made pursuant to Spanish law and under the Brussels I Regulation and must, in principle, be enforced in France. The same holds for the limitation of the right of the applicants in the main proceedings, which stems from the public policy clause and is provided for by that regulation. (
94
)
135.
In such a case, the assessment of observance of the principle of proportionality must be carried out in accordance with the need to reconcile the requirements of the protection of those various rights, striking a fair balance between them. (
95
)
136.
The striking of such a balance is part of the mechanism for the protection of freedom of expression laid down by the ECHR. It is therefore not surprising that, for the purpose of striking such a balance between freedom of expression and other fundamental rights or freedoms, the Court refers to the assessment criteria used by the ECtHR. (
96
)
137.
To my knowledge, the ECtHR has not yet ruled on the principles applicable in cases where the right to freedom of expression, which is guaranteed in Article 10 ECHR, must be weighed against the right to enforcement of a judgment given abroad, which is guaranteed in Article 6 of that Convention. The Court must therefore establish such principles in respect of Article 11(2) and the second paragraph of Article 47 of the Charter for the purposes of the present reference for a preliminary ruling.
2.
Compensatory damages
138.
The problem raised in the second question, as formulated by the referring court, relates to whether the court of the Member State in which enforcement is sought may find the existence of a manifest breach of freedom of the press on the ground that the penalty is disproportionate where it concerns damages awarded as compensation for non-material damage. Before addressing this problem, it would seem to be useful to give some additional clarifications regarding its scope.
(a)
Preliminary observations
139.
In the first place, the problem raised in the second question, as formulated by the referring court, seems to originate from the ground of appeal on a point of law by which the applicants in the main proceedings assert that a review of the proportionality of damages may be undertaken only where those damages are punitive in nature and not compensatory. In addition, the applicants in the main proceedings and the Spanish Government observe that the damages at issue in the main proceedings were not categorised as ‘punitive’ by the Spanish court, but seek to compensate for non-material damage suffered. The formulation of the second question suggests that the referring court is working from the same premiss.
140.
In the second place, I note that that ground of appeal relates to one of the arguments made by the cour d’appel de Paris (Court of Appeal, Paris), according to which the applicants in the main proceedings had not claimed any financial loss and non-material damage is difficult to quantify. I must point out in that regard that although it is not possible to calculate non-material damage and financial loss in the same way, this does not mean that the penalty relating to non-material damage is not compensatory. (
97
)
141.
In the third place, the problem raised in the second question, as formulated by the referring court, seems be based on the premiss that the categorisation of damages can be done both by the court of the Member State of origin and by the court of the Member State in which enforcement is sought (‘where the damages have been categorised as punitive either by the court [of the Member State] of origin or by the court [of the Member State] in which enforcement is sought’). However, in the light of the considerations set out in points 124 to 126 of this Opinion, the prohibition on the review as to substance prevents the court of the Member State in which enforcement is sought from making such classification of damages. That court cannot substitute its own classification for that of the court of the Member State of origin. Similarly, it is prohibited from examining the findings of law or fact in order to conclude that the amount of damages awarded is not consistent with the damage suffered and that a substantial part of that amount is not compensatory but punitive.
(b)
Assessment
142.
With regard to the substantive examination of the problem raised by the second question, I will begin by considering the argument discussed by the parties at the hearing concerning current trends in private international law. I will then examine more closely the relevant case-law of the Court and of the ECtHR.
(1) Current trends in private international law
143.
Several attempts have been made in private international law – sometimes with success, sometimes without (
98
) – to create a public policy clause relating specifically to the award or enforcement of punitive damages. That does not mean, however, that recourse to public policy is excluded where an order imposing a penalty does not relate to compensatory damages.
144.
In that regard, some parties made reference, in their written observations and at the hearing, to the Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters (
99
) (‘the 2019 Convention’), to which the European Union is a party. More precisely, those parties assert that although that Convention prohibits a review of the merits, Article 10(1) thereof provides that ‘recognition or enforcement of a judgment may be refused if, and to the extent that, the judgment awards damages, including exemplary or punitive damages, that do not compensate a party for actual loss or harm suffered’.
145.
The relevance of the 2019 Convention to the present case was debated at the hearing.
146.
On the one hand, the 2019 Convention does not cover ‘defamation’ and ‘privacy’ (
100
) because, as is indicated by the Explanatory Report on that Convention, these are sensitive matters for many States since they touch on freedom of expression and therefore may have constitutional implications. (
101
)
147.
On the other hand, in 2019, the Institute of International Law published its Resolution on Injuries to Rights of Personality Through the Use of the Internet and, under Article 9 thereof, Article 10 of the 2019 Convention should also be applicable in the case of that type of injury. (
102
) Admittedly, that resolution does not have binding force. Nevertheless, it was drawn up under the auspices of that institute whose authority when it comes to identifying current trends in private and public international law cannot be ignored. (
103
) That resolution thus demonstrates that the relevance of the approaches identified by The Hague Conference goes beyond the 2019 Convention.
148.
That being said, notwithstanding the wording of Article 10 of the 2019 Convention, the distinction between compensatory and punitive damages is not decisive in the context of that convention. According to the Explanatory Report on the 2019 Convention, refusal of enforcement on the basis of that provision could operate only when it is obvious from the judgment that the award appears to go beyond the actual loss or harm suffered. In that respect, in addition to punitive damages, ‘in exceptional cases, damages which are characterised as compensatory by the court of origin could also fall under this provision’. (
104
) According to legal writings, under that convention, refusal of enforcement of a foreign judgment is therefore allowed in so far as it concerns punitive damages or damages that are otherwise excessive. (
105
)
149.
I infer from this that, according to current trends in private international law, in absolutely exceptional cases recourse may be had to the public policy clause even where the order imposing a penalty relates to compensatory damages. In the absence of clear guidance on the approach adopted by the EU legislature in the Brussels I Regulation, we must turn to the relevant case-law concerning that regulation and freedom of expression.
(2) Relevant case-law of the Court
150.
A reading of the judgment in flyLAL-Lithuanian Airlines (
106
) might suggest that the amount of the penalty to compensate for financial loss and the ensuing economic consequences do not in themselves constitute grounds for refusal of enforcement. The Court held that the public policy clause does not seek to protect purely economic interests, with the result that the mere invocation of serious economic consequences does not constitute an infringement of the public policy of the Member State in which recognition is sought.
151.
However, in that judgment the Court was also careful to point out that the judgments the enforcement of which was at issue constituted provisional and protective measures not consisting in the payment of a sum but simply in the monitoring of the assets of the defendants in the main proceedings. (
107
) In addition, it is not apparent from that judgment that the serious economic consequences in the Member State in which enforcement is sought, which do not consist in a mere invocation of economic interests, cannot constitute a ground for refusal of enforcement.
152.
I thus understand the judgment in flyLAL-Lithuanian Airlines to mean that, where an order imposing a penalty relates to compensatory damages, recourse may be had to public policy in absolutely exceptional cases and only where other arguments concerning public policy in the Member State in which enforcement is sought are invoked against the enforcement of that order. (
108
)
(3) Relevant case-law of the ECtHR
153.
In its case-law on freedom of expression, the ECtHR has stated that the nature and severity of the penalties imposed are factors to be taken into account when assessing the proportionality of an interference with the freedom of expression guaranteed by Article 10 ECHR. (
109
) Reading that case-law might suggest that the order is in itself more important than the penalty imposed, which is minor in nature.
154.
However, in the first place, it should be noted that the case-law of the ECtHR comprises two distinct strands, one concerning criminal sanctions and one concerning penalties for defamation constituting a civil wrong. The national authorities must show restraint in resorting to criminal proceedings and pay greater attention to the severity of criminal sanctions. (
110
)
155.
In the second place, it is true that the ECtHR has found a violation of Article 10 ECHR in the case of a civil penalty that related to a ‘symbolic value’. However, the fact that an order is more important than the minor nature of the penalty imposed does not constitute the starting point for the reasoning but an argument relied on as a last resort to assert that the negligible nature of such a penalty cannot suffice, in itself, to justify the interference with the applicant’s freedom of expression, (
111
) without necessarily producing a genuine deterrent effect on the exercise of freedom of expression. (
112
)
156.
More importantly, in the third place, the ECtHR considers that in principle it is necessary to retain the possibility for persons injured by defamatory statements to bring an action for damages constituting an effective remedy for violations of personality rights. (
113
) According to that court, in specific circumstances, an exceptional and particularly high amount of damages for libel may raise an issue under Article 10 ECHR. (
114
) In particular, in order to ensure a fair balance between the rights involved, the amount of damages awarded for defamation must bear a ‘reasonable relationship of proportionality’ to the injury to reputation suffered. (
115
) In that regard, as is observed by academic writers, the ECHR does not ban all forms of financial or supra-compensatory penalties. However, that convention prohibits penalties which are disproportionate within the specific meaning of that term, as adopted in the case-law of the ECtHR, (
116
) namely those which, on account of their characteristics weighted in relation to the facts of the case, lead to a limitation of freedom of expression which is not necessary in a democratic society.
157.
Accordingly, on the one hand, the case-law of the ECtHR does not include any guidance as to whether the punitive nature of damages is a pre-condition for accepting a possible violation of the freedoms enshrined in Article 10 ECHR. On the other hand, it does lay down certain criteria for the purposes of assessing whether a compensatory sanction is disproportionate on the basis of which it can be established whether it leads to a limitation of freedom of expression which is not necessary in a democratic society. I will analyse those assessment criteria below.
158.
In any event and with regard to the problem raised by the second question, as formulated by the referring court, in the light of current trends in private international law and the relevant case-law, I take the view that, where an order imposing a penalty relates to compensatory damages, recourse may be had to public policy in absolutely exceptional cases and solely in connection with other arguments concerning public policy in the Member State in which enforcement is sought.
3.
Deterrent effect
159.
The problem raised in the third to seventh questions as formulated by the referring court, taken together, concerns two aspects.
160.
The referring court is seeking to ascertain, first, whether the deterrent effect of an order relating to damages awarded as compensation for non-material damage is in itself sufficient to justify recourse to the public policy clause for the purposes of Article 34(1) of the Brussels I Regulation, read in the light of Article 11 of the Charter, and, second, what are the factors to be taken into account in establishing the existence of such deterrent effect.
(a)
Deterrent effect as a ground for refusal of enforcement
(1) The concept of deterrent effect
161.
As a preliminary remark, I note that, while the referring court makes reference to the concept of deterrent effect, it does not provide a definition of the concept.
162.
In that respect, first, that reference seems to originate from the judgments given by the cour d’appel de Paris (Court of Appeal, Paris), which held, in words recalling the case-law of the ECtHR, that the orders imposing the penalties at issue in the main proceedings had a deterrent effect on the involvement of the defendants in the main proceedings in the public discussion of matters of community interest such as to curtail the media’s ability to perform its information and monitoring role. Second, in the request for a preliminary ruling, the referring court refers to the case-law of the ECtHR, stating that ‘the deterrent effect of an order to pay damages is a criterion in the assessment of the proportionality of … compensation for defamatory statements’.
163.
In its case-law on freedom of expression, the ECtHR refers interchangeably to ‘deterrent effect’, ‘dissuasive effect’ and ‘chilling effect’. (
117
)
164.
Academic writers have observed that, while the ECtHR has not yet defined in a substantial way the concept of chilling effect, it has relied on that concept to justify a strict scrutiny review of national measures which it understands as most likely to produce negative effects going beyond the individual instances where they are applied, resulting in natural and legal persons being dissuaded from exercising their rights for fear of being subject to those measures. (
118
)
165.
In the same vein, academic legal writers have noted that the term ‘chilling effect’ is not used in a consistent way in the case-law on freedom of expression, in particular in so far as it seems to refer to the implications of interference with freedom of expression going beyond the situation of the person directly concerned by that interference. (
119
)
166.
In a line of case-law relating to civil sanctions, the ECtHR seems to use the concept of deterrent effect in connection with journalistic freedom in the State concerned. It refers to national proceedings resulting in an excessive and disproportionate burden being placed on the persons concerned, ‘which was capable of having a chilling effect on press freedom in the respondent State’, (
120
) an overall sum of the penalty being an ‘important factor in terms of the potential “chilling effect” of the proceedings on her and other journalists’ (
121
) and a ‘[penalty which] is inevitably likely to deter journalists from contributing to public discussion of issues affecting the life of the community’. (
122
)
(2) Relevance to the present case
167.
The definition given by the ECtHR of deterrent effects, which are even unacceptable from the perspective of protection of freedom of the press in the context of the debate on a matter of public interest, would seem to be relevant in the context of the present case, which revolves around the issue of refusal of enforcement on the ground that enforcement of a judgment given in another Member State would manifestly infringe public policy in the Member State in which enforcement is sought.
168.
In the first place, such unacceptable effects are likely to deter journalists from contributing to public discussion of issues affecting the life of the community. The debate surrounding questions of doping in football touches on the public interest (
123
) and the contribution to a debate of public interest is an essential factor to be taken into consideration when striking a balance between competing fundamental rights. (
124
)
169.
In that context, in the second place, as regards recourse to the public policy clause, a fair balance must be struck between freedom of expression and the right to enforcement of a judgment given in another Member State, enshrined in the second paragraph of Article 47 of the Charter. Finding a fair balance cannot, in principle, mean refraining from enforcing a judgment on account of the repercussions that it would have on the defendant. The essence of a penalty lies in the fact that its consequences are felt by the defendant.
170.
In addition, as I noted in point 152 of this Opinion, where an order imposing a penalty relates to compensatory damages, recourse may be had to public policy in absolutely exceptional cases and only in connection with other arguments concerning the threat to public policy in the Member State in which enforcement is sought. That is the case for the argument that the authorisation of enforcement is likely to have a deterrent effect on freedom of the press in the Member State concerned. The deterrent effect thus defined affects both journalistic freedom in the Member State concerned and freedom of information for the general public. A refusal to authorise enforcement in such a case protects not only the defendant against the sanction imposed on him or her but also the interest of society in the Member State concerned.
171.
The enforcement of a judgment given in another Member State which is likely to have a deterrent effect on the exercise of freedom of the press in the Member State in which enforcement is sought thus gives rise to a manifest and disproportionate breach of a fundamental principle of the latter Member State and therefore constitutes a ground for refusal of enforcement. It is now necessary to determine the criteria for establishing whether a penalty gives rise to such effect.
(b)
Assessment criteria for deterrent effect
(1) Deterrent effect from the perspective of the court of the Member State in which enforcement is sought
172.
The referring court asks whether the circumstances described in the third to seventh questions as formulated by that court may be taken into account in establishing whether there is a manifest breach of public policy in the Member State in which enforcement is sought. In that respect, one might be tempted to take inspiration from the case-law of the ECtHR which, in order to find a violation of Article 10 ECHR, appears to give weight to each of the circumstances set out by the referring court.
173.
However, as stated in point 129 of this Opinion, before the court of the Member State in which enforcement is sought, the question arising is not whether damages are proportionate but rather whether enforcement of a judgment awarding damages is likely to have a deterrent effect giving rise to a manifest
and disproportionate breach of freedom of the press in that Member State on account of the sanction imposed. Consequently, the purpose of the verifications made by the court of the Member State in which enforcement is sought can only be to identify the risk of such deterrent effect, without entailing a review of the assessments of the merits made by the court of the Member State of origin. As an extension of that reasoning, the role of the Court is not to replace that of the ECtHR in establishing a breach of freedom of the press which is attributable to that Member State.
174.
In that context, in addition to payment of damages, interest and costs, the defendants in the main proceedings were ordered to publish the judgment given in the Member State of origin. However, the questions referred cover only the financial dimension of the penalty. Recourse may be had to the public policy clause only in the case of infringement of the legal order of the Member State in which enforcement is sought by elements of the judgment the enforcement of which is sought in that Member State. According to the ECtHR, however, the assessment of interference with freedom of expression in terms of its deterrent effect must take account of the nature of other sanctions and measures imposed on the person concerned. (
125
)
(2) The relevant criteria in the present case
175.
By its third to seventh questions, the referring court is seeking to establish whether the resources of the person concerned, the seriousness of the wrong, the extent of the harm and the significance of the specific deterrent effect in the light of the economic situation of a newspaper publishing house and the print media in general must be taken into account in establishing the existence of a deterrent effect. It also asks whether the existence of a deterrent effect should be assessed in the same way for the newspaper publishing house and the journalist.
176.
As regards the significance of the deterrent effect (fourth question, as formulated by the referring court), in view of the need to balance the fundamental rights at issue, (
126
) only the risk of a deterrent effect going beyond the situation of the person directly concerned justifies refusal of enforcement in that it constitutes a manifest and disproportionate breach of freedom of the press in the Member State in which enforcement is sought. It is only then that the court of that Member State must have recourse to the public policy clause in order to remedy a manifest deficiency in the protection of that freedom. (
127
)
177.
As regards the resources of the person concerned according to whether it is a natural person or a legal entity (first part of the third question and fifth and sixth questions as formulated by the referring court), the court of the Member State in which enforcement is sought must take account of the fact that the overall sum that the person concerned is required to pay is an important factor in terms of the potential deterrent effect on that person and on other journalists. (
128
)
178.
It is true that the ECtHR appears to take into account as a mitigating circumstance the fact that, as in this case, the publisher and the journalist are jointly and severally liable for payment of a penalty. (
129
) However, the deterrent effect is not assessed in the same way for the newspaper publishing house and the journalist who was the author of the article in question.
179.
For a natural person, on the one hand, the ECtHR refers to the salary of the person concerned or to benchmarks such as the minimum (
130
) or average (
131
) salary in the defendant State in question. In principle, the overall sum that the person concerned is required to pay must be considered manifestly unreasonable where that person would have to struggle for years to pay it in full or where that sum is several dozen times the standard minimum salary in the Member State in which enforcement is sought. For a legal entity, on the other hand, the ECtHR ensures that the amount of damages which media companies are ordered to pay is not such as to threaten their economic foundations (
132
) and thus manifestly unreasonable.
180.
In addition, as regards the economic situation of the print media in general in the Member State in which enforcement is sought (seventh question, as formulated by the referring court), although a potential deterrent effect affects journalists and media companies in that Member State, the court of that Member State does not have to take into account the economic situation of the print media in refusing enforcement of a judgment. From the point of view of journalists and media companies, the crucial factor is awareness of the fact that they too can be subject to a penalty which is manifestly unreasonable in relation to the circumstances of the case.
181.
Lastly, in view of the role of the court of the Member State in which enforcement is sought in the system of recognition and enforcement established by the Brussels I Regulation, (
133
) the verifications made by that court must relate above all to the manifest and disproportionate repercussions on freedom of the press of the sanction imposed by the judgment the enforcement of which is sought. That court cannot therefore review the accuracy of the findings of law or fact made by the court of the State of origin concerning the seriousness of the wrong and the extent of the harm (second part of the third question, as formulated by the referring court).
182.
However, in order to ensure that the result of the balancing exercise for the rights involved is not characterised by manifestly deficient protection of fundamental rights, (
134
) the court of the Member State in which enforcement is sought may take account of the seriousness of the wrong and the extent of the harm in determining whether, even though the overall sum of a penalty is a priori manifestly unreasonable, it is appropriate for counteracting the effects of defamatory statements. (
135
)
E. The presumption of equivalent protection
183.
According to the well-known presumption of ‘equivalent protection’, which stems from the case-law of the ECtHR and is applicable to the Member States, (
136
) action taken by a Member State in compliance with obligations resulting from its membership of the European Union is justified where, in the light of the ECHR, the European Union protects fundamental rights in a manner which can be considered at least equivalent to that for which the ECHR provides. (
137
) It is true that the applicability of that presumption and the consequences following from it are evaluated only by the ECtHR. However, in a spirit of coordination between the Charter and the ECHR and in order to give an exhaustive answer to the Court regarding the implications of its future judgment, I wish to make some additional remarks on that presumption.
184.
According to the case-law of the ECtHR, the application of the presumption of equivalent protection is subject to two conditions: the absence of any margin of manoeuvre on the part of the domestic authorities and the deployment of the full potential of the supervisory mechanism provided for by EU law, (
138
) including a reference for a preliminary ruling to the Court before which fundamental rights issues may be discussed. Since a reference for a preliminary ruling was made to the Court and it is for the ECtHR alone to examine whether the second condition is met, I will focus on the first condition.
185.
In that regard, the question whether the presumption of equivalent protection applies is examined by the ECtHR having regard to ‘the precise provision applied in the instant case’ (
139
) and all the consequences following from it for the Member State concerned, as interpreted by the Court. (
140
) Consideration must be given to all relevant elements of the EU legal framework which give rise to the obligations of the Member State concerned vis-à-vis the European Union and the other Member States.
186.
In this case, the question is therefore whether, under the system established by the Brussels I Regulation, the court of the Member State in which enforcement is sought, hearing an appeal provided for in Articles 43 and 44 of that regulation, retains the discretionary power to decide whether or not to apply the public policy clause where the enforcement of a judgment given in another Member State manifestly breaches a fundamental right guaranteed by the Charter.
187.
To my knowledge, the ECtHR has not yet ruled on that scenario. (
141
) Some legal writers take the view that the public policy clause implies the existence of discretion, precluding the application of the presumption of equivalent protection. (
142
) I consider, however, that that is not the case where the alleged breach relates to a fundamental principle of the EU legal order.
188.
It is true that Article 45(1) of the Brussels I Regulation provides that the court of the Member State in which enforcement is sought shall refuse enforcement only on one of the grounds specified in Articles 34 and 35 of that regulation. However, with regard to the ground for refusal of enforcement, the former provision refers to Article 34(1) of that regulation, which categorically states that a judgment is not to be recognised if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought.
189.
Furthermore, as was stated in point 102 of this Opinion, the Member State in which enforcement is sought does not unilaterally determine the content of EU public policy. Similarly, the classification of that breach of public policy as manifest stems from a correct interpretation of EU law and is thus subject to review by the Court. More importantly, respect for fundamental rights is not a matter of goodwill or courtesy on the part of the Member State in which enforcement is sought. When faced with a complaint which it considers to be well founded and according to which the enforcement of a judgment falling within the scope of the Brussels I Regulation would give rise to a manifest breach of EU public policy and, more specifically, of a fundamental right, the court of the Member State in which enforcement is sought is obliged to refuse enforcement of that judgment. In that situation, it must therefore refuse or revoke a declaration of enforceability of that judgment.
190.
For the sake of completeness, I would add that the fact that the court of the Member State in which enforcement is sought is obliged to examine whether the conditions for enforcement are met does not mean that it exercises discretion for the purposes of the case-law concerning the ECHR. The ECtHR considers that the presumption of equivalent protection applies where the Member State in which recognition and enforcement are sought may refuse recognition and enforcement of a foreign judgment ‘within very precise limits and subject to certain preconditions’. (
143
)
F. Final observations
191.
In the light of all the foregoing considerations, I propose that the questions referred for a preliminary ruling be answered to the effect that Article 45(1) of the Brussels I Regulation, read in conjunction with Article 34(1) and Article 45(2) thereof, and Article 11 of the Charter must be interpreted as meaning that a Member State in which enforcement is sought of a judgment given in another Member State, concerning a financial penalty imposed on a newspaper publishing house and a journalist for harm caused to the reputation of a sports club and a member of its medical team by the publication of a story in that newspaper, must refuse or revoke a declaration of enforceability of that judgment where enforcement of that judgment would give rise to a manifest breach of the freedom of expression guaranteed in Article 11 of the Charter. (
144
) Such a breach exists where enforcement of that judgment gives rise to a potential deterrent effect in respect of involvement in the debate on a matter of public interest both of the persons on whom the penalty is imposed and of other media companies and journalists in the Member State in which enforcement is sought. (
145
) Such potential deterrent effect occurs where the overall sum the payment of which is claimed is manifestly unreasonable having regard to the nature and the economic situation of the person concerned. In the case of a journalist, the potential deterrent effect occurs in particular where that sum is several dozen times the standard minimum salary in the Member State in which enforcement is sought. In the case of a newspaper publishing house, the potential deterrent effect must be understood as a manifest threat to the financial stability of that newspaper. (
146
) The court of the Member State in which enforcement is sought may take account of the seriousness of the wrong and the extent of the harm only in determining whether, even though the overall sum of a penalty is a priori manifestly unreasonable, it is appropriate for counteracting the effects of defamatory statements. (
147
)
192.
For the sake of completeness, I would add that, when faced with a complaint alleging that enforcement of a judgment given in another Member State which orders a newspaper publishing house and a journalist who was the author of the article in question to pay, jointly and severally, a substantial amount as compensation for the same non-material damage is contrary to freedom of the press in the Member State in which enforcement is sought, the court of that Member State may refuse enforcement in respect of the penalty imposed on one of those persons. Under Article 48 of the Brussels I Regulation, where a foreign judgment has been given in respect of several matters and the declaration of enforceability cannot be given for all of them, the court or competent authority is to give it for one or more of them.
VI. Conclusion
193.
In the light of all the foregoing considerations, I propose that the Court answer the questions referred for a preliminary ruling by the Cour de cassation (Court of Cassation, France) as follows:
Article 45(1) of Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, read in conjunction with Article 34(1) and Article 45(2) thereof, and Article 11 of the Charter of Fundamental Rights of the European Union
must be interpreted as meaning that a Member State in which enforcement is sought of a judgment given in another Member State, concerning a financial penalty imposed on a newspaper publishing house and a journalist for harm caused to the reputation of a sports club and a member of its medical team by the publication of a story in that newspaper, must refuse or revoke a declaration of enforceability of that judgment where enforcement of that judgment would give rise to a manifest breach of the freedom of expression guaranteed in Article 11 of the Charter.
Such a breach exists where enforcement of the judgment gives rise to a potential deterrent effect in respect of involvement in the debate on a matter of public interest both of the persons on whom the penalty is imposed and of other media companies and journalists in the Member State in which enforcement is sought. Such potential deterrent effect occurs where the overall sum the payment of which is claimed is manifestly unreasonable having regard to the nature and the economic situation of the person concerned. In the case of a journalist, the potential deterrent effect occurs in particular where that sum is several dozen times the standard minimum salary in the Member State in which enforcement is sought. In the case of a newspaper publishing house, the potential deterrent effect must be understood as a manifest threat to the financial stability of that newspaper. The court of the Member State in which enforcement is sought may take account of the seriousness of the wrong and the extent of the harm only in determining whether, even though the overall sum of a penalty is a priori manifestly unreasonable, it is appropriate for counteracting the effects of defamatory statements.
(
1
)	Original language: French.
(
2
)	Council Regulation of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2001 L 12, p. 1).
(
3
)	Convention signed in Brussels on 27 September 1968 (OJ 1972 L 299, p. 32; ‘the Brussels Convention’).
(
4
)	Regulation of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (OJ 2012 L 351, p. 1), which, under Article 66 thereof, applies to legal proceedings instituted on or after 10 January 2015.
(
5
)	In the request for a preliminary ruling, the referring court states in that regard that, by an order of 11 July 2014, the Juzgado de Primera Instancia no19 de Madrid (Court of First Instance No 19, Madrid) ordered Société Éditrice du Monde to pay Real Madrid the sum of EUR 390000 by way of the principal amount, interest and costs. It does not make clear, however, whether that order also related to the enforcement of the order imposing a penalty in respect of the journalist. Nevertheless, that request and the observations submitted by the parties suggest that that order concerned enforcement in respect of both defendants in the main proceedings.
(
6
)	Judgment of 28 March 2000 (C‑7/98, EU:C:2000:164, ‘the judgment in Krombach’, paragraphs 36 and 37).
(
7
)	Judgment of 15 May 1986 (222/84, EU:C:1986:206, paragraph 18).
(
8
)	Convention signed in Rome on 4 November 1950.
(
9
)	ECtHR, 26 April 2007, Colaco Mestre and SIC – Sociedade Independente de Comunicacao, S.A. v. Portugal (CE:ECHR:2007:0426JUD001118203, paragraph 28).
(
10
)	ECtHR, 26 November 2013, Błaja News Sp. z o. o. v. Poland (CE:ECHR:2013:1126JUD005954510, paragraph 71).
(
11
)	Paragraph 22 of that judgment.
(
12
)	Judgment in Krombach (paragraph 23).
(
13
)	See, to that effect, judgment of 7 September 2023, Charles Taylor Adjusting (C‑590/21, ‘the judgment in Charles Taylor Adjusting’, EU:C:2023:633, paragraph 32 and the case-law cited).
(
14
)	See judgments in Krombach (paragraph 21) and Charles Taylor Adjusting (paragraph 32 and the case-law cited).
(
15
)	See judgment in Krombach (paragraph 36).
(
16
)	See judgment in Krombach (paragraph 37).
(
17
)	See judgment of 25 May 2016, Meroni (C‑559/14, ‘the judgment in Meroni’, EU:C:2016:349, paragraph 44).
(
18
)	See judgment in Meroni (paragraph 45).
(
19
)	See judgment in Meroni (paragraph 45).
(
20
)	ECtHR, 23 May 2016, Avotiņš v. Latvia (CE:ECHR:2016:0523JUD001750207, ‘the judgment in Avotiņš v. Latvia’, paragraph 96 and the case-law cited).
(
21
)	The ECtHR recognised in its judgment of 29 April 2008, McDonald v. France (CE:ECHR:2008:0429DEC001864804) that the refusal to authorise the execution of the judgments at issue had amounted to an interference with the applicant’s right to a fair hearing, guaranteed in Article 6(1) ECHR. It also held in its judgment of 3 May 2011, Négrépontis-Giannisis v. Greece (CE:ECHR:2011:0503JUD005675908, paragraphs 89 to 92) that the refusal to recognise the adoption of a child, which was ordered in the United States, on the ground that it was contrary to public policy in the Member State in which recognition was sought, had entailed a violation of Articles 8 and 14 and Article 6(1) ECHR. More specifically, after finding a violation of those first two provisions, the ECtHR simply observed that the interpretation of the concept of ‘public policy’ by the court of the Member State in which recognition is sought must not be arbitrary and disproportionate.
(
22
)	See Kinsch, P., ‘Enforcement as a Fundamental Right’, Nederlands Internationaal Privaatrecht, No 4, 2014, p. 543.
(
23
)	See, inter alia, with regard to the violation of Article 8 ECHR, ECtHR, 3 May 2011, Négrépontis-Giannisis v. Greece (CE:ECHR:2011:0503JUD005675908).
(
24
)	See, inter alia, Kinsch, P., op. cit., p. 543, and Hazelhorst, M., Free movement of civil judgments in the European Union and the right to a fair trial, Springer, The Hague, 2017, p. 160.
(
25
)	See, inter alia, Spielmann, D., ‘La reconnaissance et l’exécution des décisions judiciaires étrangères et les exigences de la Convention européenne des droits de l’homme. Un essai de synthèse’, Revue trimestrielle des droits de l’homme, vol. 88, 2011, p. 774 to 779 and 786, and Kiestra, L.R., The Impact of the European Convention on Human Rights on Private International Law, 2014, The Hague, Springer, p. 262 to 274, who draw particular attention to the fact that, in its case-law in this area, the ECtHR sometimes recognises the violation of Article 6(1) ECHR in so far as it ensures access to a court. However, this line of case-law seems to appear in the context of cases where, according to the applicants, recognition or enforcement of a judgment was substantially delayed.
(
26
)	See, inter alia, Cuniberti, G., Rueda, I., ‘Abolition of Exequatur. Addressing the Commission’s Concerns’, Rabels Zeitschrift für ausländisches und internationales Privatrecht, 2011, vol. 2(75), p. 294, who, without making a categorical statement on the existence of a ‘right’ for the applicant, focus primarily on the need to strike a balance between such a right and the fundamental rights of a defendant.
(
27
)	See Barba, M., ‘L’exequatur sous le regard de la Cour européenne des droits de l’homme’, Les Mémoires de l’Équipe de Droit International, Européen et Comparé, Lyon, 2012, No 2, https://dumas.ccsd.cnrs.fr/dumas-04035845, p. 35 and 36. See, with regard to that criticism, Pailler, L., Le respect de la Charte des droits fondamentaux de l’Union européenne dans l’espace judiciaire européen en matière civile et commercial, Éditions A. Pedone, Paris, 2017, p. 113.
(
28
)	See Article 38(1) and Article 45(1) of the Brussels I Regulation. Furthermore, Advocate General Kokott stated in her Opinion in Apostolides (C‑420/07, EU:C:2008:749, point 52) that whether Article 6(1) ECHR makes the recognition and enforcement of foreign judgments obligatory can remain an open question since the Brussels I Regulation confers a corresponding right in any case.
(
29
)	See, to that effect, judgment of 22 June 2023, K.B. and F.S. (Raising ex officio of an infringement in criminal proceedings) (C‑660/21, EU:C:2023:498, paragraph 41).
(
30
)	See, on this issue, my Opinion in Glawischnig-Piesczek (C‑18/18, EU:C:2019:458, point 89).
(
31
)	See Article 38(1) and Article 45(1) of the Brussels I Regulation.
(
32
)	In that regard, the applicability of Article 47 of the Charter before the court of the Member State in which enforcement is sought, despite the fact that EU law did not regulate the proceedings before the court of the Member State of origin, was confirmed in the judgment of 6 September 2012, Trade Agency (C‑619/10, EU:C:2012:531, paragraphs 52 to 54), and the judgment in Meroni (paragraphs 45 and 46). In my view, it is clear that the court of the Member State in which enforcement is sought, where it is considering the question of refusal to enforce a judgment given in another Member State on the ground that such enforcement would be contrary to public policy and, to that end, applies the Brussels I Regulation, is therefore bound by all the provisions of the Charter.
(
33
)	See Cuniberti, G., ‘Le fondement de l’effet des jugements étrangers’, Recueil des cours de l’Académie de droit international de La Haye, vol. 394, 2018, p. 140, who points out that ‘the autonomy of the purely procedural basis for recognition of foreign judgments and the right to enforcement of judgments under Article 6 ECHR is surprising in that the primary basis of the right to a fair trial is to ensure the effectiveness of the substantive rights guaranteed by that convention’.
(
34
)	See, to that effect, with regard to the observance of the right to a fair trial, judgment of 6 September 2012, Trade Agency (C‑619/10, EU:C:2012:531, paragraph 55).
(
35
)	See, by analogy, judgment of 6 October 2015, Delvigne (C‑650/13, EU:C:2015:648, paragraph 48).
(
36
)	First, Article 4(3) TEU provides that, pursuant to the principle of sincere cooperation, the European Union and the Member States must, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties. Next, under Article 67(4) TFEU, the European Union is to facilitate access to justice, in particular through the principle of mutual recognition of judicial and extrajudicial decisions in civil matters. Furthermore, under Article 81(1) TFEU, the European Union is to develop judicial cooperation in civil matters having cross-border implications, based on the principle of mutual recognition of judgments and of decisions in extrajudicial cases. For those purposes, on the basis of Article 81(2)(a) TFEU, the European Union is to adopt measures aimed at ensuring the mutual recognition and enforcement between Member States of judgments and of decisions in extrajudicial cases.
(
37
)	See judgment of 16 July 2015, Diageo Brands (C‑681/13, ‘the judgment in Diageo Brands’, EU:C:2015:471, paragraph 63), and judgment in Meroni (paragraph 47).
(
38
)	See judgments in Diageo Brands (paragraph 64) and Meroni (paragraph 48).
(
39
)	In 2022 the Commission presented the draft directive on protecting persons who engage in public participation from manifestly unfounded or abusive court proceedings (‘Strategic lawsuits against public participation’) (COM(2022) 177 final), better known under the acronym ‘SLAPP’. The draft directive seeks to establish safeguards against manifestly unfounded or abusive court proceedings in civil matters with cross-border implications brought against both natural and legal persons, in particular journalists and human rights defenders, on account of their engagement in public participation. Depending on its final content, such a directive could alter the applicability of Article 11 of the Charter in proceedings before a court of the Member State of origin in situations such as that at issue in the present case.
(
40
)	Another solution would be to temper the conditions governing the admissibility of questions referred for a preliminary ruling in the field of judicial cooperation in civil matters having cross-border implications and to permit a court of the Member State of origin to refer a question to the Court for a preliminary ruling concerning a future possible refusal of enforcement of the judgment to be given by the court of the Member State of origin at the conclusion of the proceedings before it. That solution cannot be accepted unreservedly and, in any event, the present reference for a preliminary ruling does not come from a Member State of origin. However, see, with regard to this contentious issue in the field of judicial cooperation in criminal matters, judgment of 25 July 2018, AY (Arrest Warrant – Witness) (C‑268/17, EU:C:2018:602, paragraphs 27 to 30).
(
41
)	See point 183 et seq. of this Opinion.
(
42
)	See, to that effect, ECtHR, 18 June 2013, Povse v. Austria (CE:ECHR:2013:0618DEC000389011, paragraphs 86 to 87).
(
43
)	Judgment in Avotiņš v. Latvia (paragraphs 113 to 116).
(
44
)	See, to that effect, judgment of 28 April 2009, Apostolides (C‑420/07, EU:C:2009:271, paragraphs 61 and 62). See also, to that effect, judgment of 19 November 2015, P (C‑455/15 PPU, EU:C:2015:763, paragraph 40).
(
45
)	See, to that effect, judgment of 6 September 2012, Trade Agency (C‑619/10, EU:C:2012:531, paragraphs 52, 54 and 62). See also judgments in Krombach (paragraphs 25 to 27 and 45) and of 2 April 2009, Gambazzi (C‑394/07, EU:C:2009:219, paragraphs 28, 29 and 48).
(
46
)	See, to that effect, Hess, B., Report on the Application of Regulation Brussels I in the Member States (Study JLS/C4/2005/03), Ruprecht Karls University, Heidelberg, September 2007, p. 249, paragraph 558, available at: http://ec.europa.eu/civiljustice/news/docs/study_application_brussels_1_en.pdf.
(
47
)	See judgment of 11 May 2000 (C‑38/98, the judgment in Renault, EU:C:2000:225, paragraph 32).
(
48
)	See judgment in Renault (paragraph 32).
(
49
)	See Opinion of Advocate General Alber in Renault (C‑38/98, EU:C:1999:325, point 6).
(
50
)	See judgment in Renault (paragraph 34).
(
51
)	Paragraphs 30, 32 and 39. See also my Opinion in Diageo Brands (C‑681/13, EU:C:2015:137, point 52).
(
52
)	See judgment in Diageo Brands (paragraph 51).
(
53
)	Paragraphs 23 and 27 of that judgment.
(
54
)	See, to that effect, judgment in Charles Taylor Adjusting (paragraph 37).
(
55
)	See judgment in Charles Taylor Adjusting (paragraph 39).
(
56
)	See Opinion of Advocate General Richard de la Tour in Charles Taylor Adjusting (C‑590/21, EU:C:2023:246).
(
57
)	Judgment of 2 April 2009 (C‑394/07, EU:C:2009:219, paragraph 48).
(
58
)	Judgment of 2 April 2009 (C‑394/07, EU:C:2009:219, paragraph 20).
(
59
)	Judgment of 2 April 2009, Gambazzi (C‑394/07, EU:C:2009:219, paragraphs 48 and 49).
(
60
)	Paragraph 39 of that judgment.
(
61
)	Judgment of 1 June 1999 (C‑126/97, the judgment in Eco Swiss, EU:C:1999:269).
(
62
)	Judgment in Eco Swiss (paragraph 36).
(
63
)	Judgment in Eco Swiss (paragraph 37).
(
64
)	See point 92 of this Opinion.
(
65
)	It should be recalled that, since the judgment in Krombach (paragraph 37), in order for the prohibition of any review of the judgment given in another Member State as to its substance to be observed, the breach of public policy of the Member State in which recognition or enforcement is sought authorising it to refuse to recognise or enforce that judgment must constitute a ‘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’. My emphasis.
(
66
)	It is true that in the judgment of 23 October 2014, flyLAL-Lithuanian Airlines (C‑302/13, EU:C:2014:2319, paragraph 56) the Court held that the concept of ‘public policy’ seeks to protect legal interests which are expressed through a rule of law. However, this slightly reductive wording was due to the specific context of that case. In any event, in making that statement the Court wished to emphasise above all that the public policy clause can only be used to protect legal interests.
(
67
)	See judgment in Meroni (paragraph 46).
(
68
)	See judgment in Diageo Brands (paragraph 68).
(
69
)	See my Opinion in Diageo Brands (C‑681/13, EU:C:2015:137, point 39).
(
70
)	See, to that effect, judgment in Diageo Brands (paragraph 50). See also judgments in Meroni (paragraph 46) and Charles Taylor Adjusting (paragraph 36).
(
71
)	See, to that effect, judgment of 16 February 2022, Hungary v Parliament and Council (C‑156/21, EU:C:2022:97, paragraph 127).
(
72
)	See point 77 of this Opinion.
(
73
)	See judgment of 3 February 2021, Fussl Modestraße Mayr (C‑555/19, EU:C:2021:89, paragraph 83).
(
74
)	OJ 2007 C 303, p. 17.
(
75
)	See the case-law arising from the judgments in Renault and Eco Swiss, referred to in points 77 to 80 and 91 to 94 of this Opinion.
(
76
)	See, to that effect, judgment of 29 July 2019, Spiegel Online (C‑516/17, EU:C:2019:625, paragraph 72).
(
77
)	ECtHR, 23 September 2009, Jersild v. Denmark (CE:ECHR:1994:0923JUD001589089, paragraph 31).
(
78
)	See, to that effect, judgment of 3 February 2021, Fussl Modestraße Mayr (C‑555/19, EU:C:2021:89, paragraph 82).
(
79
)	See judgment of 25 July 1991, Collectieve Antennevoorziening Gouda (C‑288/89, EU:C:1991:323).
(
80
)	See, by way of illustration, ECtHR, 7 June 2012, Centro Europa 8 S.r.l. and Di Stefano v. Italy (CE:ECHR:2012:0607JUD003843309, paragraph 129).
(
81
)	See, in particular, ECtHR, 7 February 2012, Axel Springer AG v. Germany (CE:ECHR:2012:0207JUD003995408, paragraphs 78 to 81).
(
82
)	See, recently, ECtHR, 5 December 2017, Frisk and Jensen v. Denmark (CE:ECHR:2017:1205JUD001965712, paragraph 53).
(
83
)	See ECtHR, 2 September 2014, Firma EDV für Sie, EfS Elektronische Datenverarbeitung Dienstleistungs GmbH v. Germany (CE:ECHR:2014:0902DEC003278308, paragraph 23).
(
84
)	See, recently, ECtHR, 11 January 2022, Freitas Rangel v. Portugal (CE:ECHR:2022:0111JUD007887313, paragraph 53).
(
85
)	See, recently, ECtHR, 5 December 2017, Frisk and Jensen v. Denmark (CE:ECHR:2017:1205JUD001965712, paragraph 55).
(
86
)	See point 45 of this Opinion.
(
87
)	See judgment in Meroni (paragraphs 52 and 53).
(
88
)	Council Regulation of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility, repealing Regulation (EC) No 1347/2000 (OJ 2003 L 338, p. 1).
(
89
)	See judgment of 9 September 2015, Bohez (C‑4/14, EU:C:2015:563, paragraph 59).
(
90
)	Judgment of 2 April 2009 (C‑394/07, EU:C:2009:219, paragraph 46). In the case which gave rise to that judgment, recourse to the public policy clause had been envisaged on the ground that enforcement infringed a fundamental procedural right in order to comply with the prohibition on review as to substance.
(
91
)	See point 70 of this Opinion.
(
92
)	See points 56 to 59 of this Opinion.
(
93
)	See, to that effect, judgment of 19 December 2019, Deutsche Umwelthilfe (C‑752/18, EU:C:2019:1114, paragraph 45).
(
94
)	See point 59 of this Opinion.
(
95
)	See, to that effect, judgment of 19 December 2019, Deutsche Umwelthilfe (C‑752/18, EU:C:2019:1114, paragraph 50).
(
96
)	See, by way of illustration, judgment of 29 July 2019, Funke Medien NRW (C‑469/17, EU:C:2019:623, paragraphs 72 to 74).
(
97
)	See, by way of illustration, judgment of 17 March 2016, Liffers (C‑99/15, EU:C:2016:173, paragraph 26).
(
98
)	The proposal for another fundamental act of EU private international law, namely Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (‘Rome II’) (OJ 2007 L 199, p. 40), provided in the third indent of Article 23(1) that ‘this Regulation shall not prejudice the application of provisions [of EU law] which … prevent application of a provision or provisions of the law of the forum or of the law designated by this Regulation’. Furthermore, under Article 24 of that proposal for a regulation, ‘the application of a provision of the law designated by [that] Regulation which has the effect of causing non-compensatory damages, such as exemplary or punitive damages, to be awarded shall be contrary to Community public policy’ (my emphasis). The latter provision was considered to be the practical application of the public policy exception provided for by the third indent of Article 23(1). The proposal to introduce those two provisions was not followed.
(
99
)	Convention adopted at the Hague Conference on Private International Law of 2 July 2019.
(
100
)	See, respectively, Article 2(1)(k) and (l) of that convention.
(
101
)	See Explanatory Report on the Convention of 2 July 2019 by Garcimartín, F. and Saumier, G. (available at: https://www.hcch.net/en/publications-and-studies/details4/?pid= 6797), p. 63.
(
102
)	‘Injuries to Rights of Personality Through the Use of the Internet: Jurisdiction, Applicable Law and Recognition of Foreign Judgments’, https://www.idi-iil.org/app/uploads/2019/09/8-RES-EN.pdf.
(
103
)	See, by way of illustration, Opinion of Advocate General Capotorti in Bier (21/76, EU:C:1976:147, point 6) and, with regard to the principle of perpetuatio fori, Opinion of Advocate General Pitruzzella in Gemeinde Bodman-Ludwigshafen (C‑256/21, EU:C:2022:366, point 72).
(
104
)	See Explanatory Report on the 2019 Convention, p. 137.
(
105
)	See Symeonides, S.C., Cross-Border Infringement of Personality Rights via the Internet. A Resolution of the Institute of International Law, Brill Nijhoff, Leiden – Boston, 2021, pp. 143 and 144.
(
106
)	Judgment of 23 October 2014 (C‑302/13, EU:C:2014:2319, paragraphs 56 and 58).
(
107
)	See, to that effect, judgment of 23 October 2014, flyLAL-Lithuanian Airlines (C‑302/13, EU:C:2014:2319, paragraph 57).
(
108
)	Judgment of 23 October 2014 (C‑302/13, EU:C:2014:2319, paragraphs 56 and 58).
(
109
)	ECtHR, 17 December 2004, Cumpănă and Mazăre v. Romania (CE:ECHR:2004:1217JUD003334896, paragraph 111).
(
110
)	ECtHR, 23 April 2015, Morice v. France (CE:ECHR:2015:0423JUD002936910, paragraph 176).
(
111
)	See ECtHR, 11 April 2006, Brasilier v. France (CE:ECHR:2006:0411JUD007134301, paragraph 43). See also Baumbach, T., ‘Chilling Effect as a European Court of Human Rights’ Concept in Media Law Cases’, Bergen Journal of Criminal Law and Criminal Justice, 2018, vol. 6(1), p. 102.
(
112
)	See, to that effect, regarding a ‘relatively moderate’ penalty, ECtHR, 24 May 2022, Pretorian v. Romania (CE:ECHR:2022:0524JUD004501416, paragraph 81).
(
113
)	See, to that effect, ECtHR, 5 May 2022, Mesić v. Croatia (CE:ECHR:2022:0505JUD001936218, paragraphs 111 to 113), and ECtHR, 16 June 2015, Delfi AS v. Estonia (CE:ECHR:2015:0616JUD006456909, paragraph 110).
(
114
)	ECtHR, 26 November 2013, Błaja News Sp. z o. o. v. Poland (CE:ECHR:2013:1126JUD005954510, paragraph 71).
(
115
)	ECtHR, 29 May 2017, Tavares de Almeida Fernandes and Almeida Fernandes v. Portugal (CE:ECHR:2017:0117JUD003156613, paragraph 77).
(
116
)	See, to that effect, Wurmnest, W., ‘Towards a European Concept of Public Policy Regarding Punitive Damages’, Punitive Damages and Private International Law: State of the Art and Future Developments, Bariatti, S., Fumagalli, L., Crespi Reghizzi, Z., Wolters Kluwer – CEDAM, Milan, 2019, p. 259.
(
117
)	See, by way of illustration, ECtHR, 14 February 2023, Halet v. Luxembourg (CE:ECHR:2023:0214JUD002188418, paragraph 205), and ECtHR, 15 May 2023, Sanchez v. France (CE:ECHR:2023:0515JUD004558115, paragraph 205). In some judgments the ECtHR uses the expression ‘“chilling”, dissuasive effect’; see ECtHR, 27 June 2017, Ghiulfer Predescu v. Romania (CE:ECHR:2017:0627JUD002975109, paragraph 61), and ECtHR, 8 January 2019, Prunea v. Romania (CE:ECHR:2019:0108JUD004788111, paragraph 38), translated into French simply as ‘un effet dissuasif’. See ECtHR, 5 May 2022, Mesić v. Croatia (CE:ECHR:2022:0505JUD001936218, paragraph 113).
(
118
)	Pech, L., The concept of chilling effect, Open Society European Policy Institute, 2021, p. 6.
(
119
)	See, to that effect, Baumbach, T., op. cit., p. 112.
(
120
)	ECtHR, 1 March 2007, Tønsbergs Blad AS and Haukom v. Norway (CE:ECHR:2007:0301JUD000051004, paragraph 102). My emphasis.
(
121
)	ECtHR, 19 April 2011, Kasabova v. Bulgaria (CE:ECHR:2011:0419JUD002238503, paragraph 71), and ECtHR, 19 April 2011, Bozhkov v. Bulgaria (CE:ECHR:2011:0419JUD000331604, paragraph 55). My emphasis.
(
122
)	ECtHR, 7 December 2010, Público – Comunicação Social, S.A. and Others v. Portugal (CE:ECHR:2010:1207JUD003932407, paragraph 55).
(
123
)	The ECtHR held in its judgment of 26 April 2007, Colaço Mestre and SIC v. Portugal (CE:ECHR:2007:0426JUD001118203, paragraph 27) that the very intense, highly publicised debate surrounding questions of corruption in football is in the public interest and, in the same vein, in its judgment of 22 February 2007, Nikowitz and Verlagsgruppe News GmbH v. Austria (CE:ECHR:2007:0222JUD000526603, paragraph 25) that ‘society’s attitude towards a sports star’ constitutes an issue of general interest.
(
124
)	See, to that effect, judgment of 29 July 2019, Funke Medien NRW (C‑469/17, EU:C:2019:623, paragraph 74). See also, in the context of protection of personal data, judgment of 8 December 2022, Google (De-referencing of allegedly false content) (C‑460/20, EU:C:2022:962, paragraph 97).
(
125
)	See, to that effect, ECtHR, 27 June 2017, Ghiulfer Predescu v. Romania (CE:ECHR:2017:0627JUD002975109, paragraph 61).
(
126
)	See points 169 to 171 of this Opinion.
(
127
)	See point 128 of this Opinion.
(
128
)	ECtHR, 19 April 2011, Kasabova v. Bulgaria (CE:ECHR:2011:0419JUD002238503, paragraph 71), and ECtHR, 19 April 2011, Bozhkov v. Bulgaria (CE:ECHR:2011:0419JUD000331604, paragraph 55). See also ECtHR, 10 February 2015, Cojocaru v. Romania (CE:ECHR:2015:0210JUD003210406, paragraph 33).
(
129
)	ECtHR, 29 August 1997, Worm v. Austria (CE:ECHR:1997:0829JUD002271493, paragraphs 15 and 57).
(
130
)	See ECtHR, 19 April 2011, Kasabova v. Bulgaria (CE:ECHR:2011:0419JUD002238503, paragraph 71), and ECtHR, 19 April 2011, Bozhkov v. Bulgaria (CE:ECHR:2011:0419JUD000331604, paragraph 55).
(
131
)	ECtHR, 7 July 2015, Morar v. Romania (CE:ECHR:2015:0707JUD002521706, paragraph 70).
(
132
)	See ECtHR, 27 November 2007, Timpul Info-Magazin and Anghel v. Moldova (CE:ECHR:2007:1127JUD004286405, paragraph 39), and ECtHR, 26 November 2013, Błaja News Sp. z o. o. v. Poland (CE:ECHR:2013:1126JUD005954510, paragraph 71).
(
133
)	See points 126 and 129 of this Opinion.
(
134
)	See points 135 and 137 of this Opinion.
(
135
)	See, to that effect, ECtHR, 5 May 2022, Mesić v. Croatia (CE:ECHR:2022:0505JUD001936218, paragraphs 111 to 113).
(
136
)	See ECtHR, 30 June 2005, Bosphorus Hava Yolları Turizm ve Ticaret Anonim Şirketi v. Ireland (CE:ECHR:2005:0630JUD004503698).
(
137
)	Judgment in Avotiņš v. Latvia (paragraphs 101 to 104).
(
138
)	Judgment in Avotiņš v. Latvia (paragraph 105).
(
139
)	See, to that effect, judgment in Avotiņš v. Latvia (paragraph 106).
(
140
)	See, to that effect, judgment of 18 June 2013, Povse v. Austria (CE:ECHR:2013:0618DEC000389011, paragraphs 79 to 81).
(
141
)	The ECtHR held in its judgment of 18 June 2013, Povse v. Austria (CE:ECHR:2013:0618DEC000389011, paragraphs 79 to 83) that that presumption is applicable in the context of the enforcement, on the basis of Regulation No 2201/2003, of a decision ordering the return of a child. It stated that that regulation leaves no discretion to the Member State of enforcement. As regards the Brussels I Regulation, the ECtHR also applied that presumption in its judgment in Avotiņš v. Latvia (paragraph 108). It proceeded from the premiss that, as regards the enforcement of a judgment given in another Member State, that regulation does not accord the Member State in which enforcement is sought any discretionary power of assessment. It considered the application without taking account of the public policy clause laid down by that regulation on the ground that the applicant had not relied on that clause before the national authorities.
(
142
)	See, to that effect, Cuniberti, G., ‘Le fondement de l’effet des jugements étrangers’, Recueil des cours de l’Académie de droit international de La Haye, 2019, vol. 394, p. 275 and 276, and Hazelhorst, M., Free Movement of Civil Judgments in the European Union and the Right to a Fair Trial, Springer, The Hague, 2017, p. 212.
(
143
)	See, to that effect, judgment in Avotiņš v. Latvia (paragraph 106).
(
144
)	See points 113 and 189 of this Opinion.
(
145
)	See point 171 of this Opinion.
(
146
)	See points 177 to 179 of this Opinion.
(
147
)	See point 182 of this Opinion.