Rudolfs Meroni v Recoletos Limited.
Date: 2016-05-25
38


As regards the concept of ‘public policy’ referred to in Article 34(1) of Regulation No 44/2001, the Court has held, in paragraph 55 of its judgment of 28 April 2009 in Apostolides (C‑420/07, EU:C:2009:271), that that provision must be interpreted strictly, inasmuch as it constitutes an obstacle to the attainment of one of the fundamental objectives of that regulation, and may be relied upon only in exceptional cases.
39


While the Member States remain in principle free, by virtue of the proviso in Article 34(1) of Regulation No 44/2001, to determine, according to their own ideas, what public policy requires, the limits of that concept are a matter of interpretation of that regulation (see judgment of 28 April 2009 in Apostolides, C‑420/07, EU:C:2009:271, paragraph 56 and the case-law cited).
40


Consequently, 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 may have recourse to that concept for the purpose of refusing recognition of a judgment emanating from a court in another Member State (see judgment of 28 April 2009 in Apostolides, C‑420/07, EU:C:2009:271, paragraph 57 and the case-law cited).
41


In that connection, it must be observed that, by not allowing any review of a foreign judgment as to its substance, Articles 36 and 45(2) of Regulation No 44/2001 prohibit the court of the Member State in which enforcement is sought from refusing to recognise or enforce that judgment solely on the ground that there is a discrepancy between the legal rule applied by the court of the State of origin and that which would have been applied by the court of the State in which enforcement is sought had it been seised of the dispute. Similarly, the court of the Member State in which recognition is sought may not review the accuracy of the findings of law or fact made by the court of the Member State of origin (see judgment of 28 April 2009 in Apostolides, C‑420/07, EU:C:2009:271, paragraph 58 and the case-law cited).
42


Accordingly, recourse to the public policy exception provided for by Article 34(1) of Regulation No 44/2001 can be envisaged only where recognition or enforcement of the judgment given in another Member State would be at variance to an unacceptable degree with the legal order of the Member State in which enforcement is sought inasmuch as it would infringe a fundamental principle. In order for the prohibition of any review of the substance of a foreign judgment of another Member State to be observed, the infringement would have to constitute a manifest breach of a rule of law regarded as essential in the legal order of the Member State in which recognition is sought or of a right recognised as being fundamental within that legal order (see judgment of 28 April 2009 in Apostolides, C‑420/07, EU:C:2009:271, paragraph 59 and the case-law cited).
43


The referring court being uncertain as to the effect of Article 47 of the Charter on the interpretation of Article 34(1) of Regulation No 44/2001 as regards the application for recognition and enforcement of the contested order, it should be recalled that the Charter’s field of application so far as concerns action of the Member States is defined in Article 51(1) thereof, according to which the provisions of the Charter are addressed to the Member States only when they are implementing EU law (see judgment of 26 February 2013 in Åkerberg Fransson, C‑617/10, EU:C:2013:105, paragraph 17).
45


Furthermore, the Court has stressed that the provisions of EU law, such as those of Regulation No 44/2001, must be interpreted in the light of fundamental rights which, according to settled case-law, form an integral part of the general principles of law whose observance the Court ensures and which are now set out in the Charter. In that respect, all the provisions of Regulation No 44/2001 express the intention of ensuring that, within the scope of the objectives of that regulation, proceedings leading to the delivery of judicial decisions are conducted in such a way that the rights of the defence laid down in Article 47 of the Charter are observed (see judgment of 11 September 2014 in A, C‑112/13, EU:C:2014:2195, paragraph 51 and the case-law cited).
46


In particular, as regards the circumstances in which the fact that a judgment of a court of a Member State was delivered in breach of procedural safeguards may constitute a ground for refusal of recognition under Article 34(1) of Regulation No 44/2001, the Court has held that the public policy clause in that article would apply only where such a breach means that the recognition of the judgment concerned in the Member State in which recognition is sought 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 Member State (see judgment of 16 July 2015 in Diageo Brands, C‑681/13, EU:C:2015:471, paragraph 50).
47


It should also be pointed out that the rules of recognition and enforcement laid down by Regulation No 44/2001 are based on mutual trust in the administration of justice in the European Union. It is that 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 (see judgment of 16 July 2015 in Diageo Brands, C‑681/13, EU:C:2015:471, paragraph 63).
48


Regulation No 44/2001 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 (see judgment of 16 July 2015 in Diageo Brands, C‑681/13, EU:C:2015:471, paragraph 64).
50


That system of judicial protection reflects the requirements laid down by the Court in its judgment of 2 April 2009 in Gambazzi (C‑394/07, EU:C:2009:219, paragraphs 42 and 44), with regard to procedural guarantees giving any third persons concerned a genuine opportunity of challenging a measure adopted by a court of the State of origin. It follows that that system cannot be regarded as a breach of Article 47 of the Charter.
51


It should also be recalled that the Court held in its judgment of 23 April 2009 in Draka NK Cables and Others (C‑167/08, EU:C:2009:263, paragraph 31), that a creditor of a debtor may not lodge an appeal against a decision on a request for a declaration of enforceability if he has not formally appeared as a party in the proceedings in which another creditor of that debtor applied for that declaration of enforceability.