1 This request for a preliminary ruling concerns the interpretation of Articles 34 and 36 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 (OJ 2001 L 12, p. 1), read in the light of Article 11 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
2 The request has been made in proceedings between Real Madrid Club de Fútbol (‘Real Madrid’) and AE, on the one hand, and EE and Société Éditrice du Monde SA, on the other, concerning the enforcement in France of a judgment delivered in Spain ordering EE and that company to pay Real Madrid and AE damages by way of compensation for the non-material damage arising from the publication of an article concerning them in the newspaper Le Monde.
3 Recitals 16 to 18 of Regulation No 44/2001 stated: ‘(16) Mutual trust in the administration of justice in the Community justifies judgments given in a Member State being recognised automatically without the need for any procedure except in cases of dispute. (17) By virtue of the same principle of mutual trust, the procedure for making enforceable in one Member State a judgment given in another must be efficient and rapid. To that end, the declaration that a judgment is enforceable should be issued virtually automatically after purely formal checks of the documents supplied, without there being any possibility for the court to raise of its own motion any of the grounds for non-enforcement provided for by this Regulation. (18) However, respect for the rights of the defence means that the defendant should be able to appeal in an adversarial procedure, against the declaration of enforceability, if he considers one of the grounds for non-enforcement to be present. Redress procedures should also be available to the claimant where his application for a declaration of enforceability has been rejected.’
4 Chapter III of Regulation No 44/2001, which comprises Articles 32 to 56, set out rules in respect of recognition and enforcement of judgments given in one Member State in other Member States.
5 Article 33(1) of that regulation provided: ‘A judgment given in a Member State shall be recognised in the other Member States without any special procedure being required.’
6 Article 34(1) of that regulation provided: ‘A judgment shall not be recognised: 1. if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought’.
7 Under Article 36 of Regulation No 44/2001: ‘Under no circumstances may a foreign judgment be reviewed as to its substance.’
8 Articles 38 to 52 of Regulation No 44/2001, contained in Section 2 of Chapter III thereof, governed the exequatur procedure.
9 Article 38(1) of Regulation No 44/2001 was worded as follows: ‘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.’
10 Article 43(1) of that regulation provided: ‘The decision on the application for a declaration of enforceability may be appealed against by either party.’
11 Article 44 of that regulation provided: ‘The judgment given on the appeal may be contested only by the appeal referred to in Annex IV.’
12 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.’
13 Annex IV to Regulation No 44/2001 stated: ‘The appeals which may be lodged pursuant to Article 44 are the following - in Belgium, Greece, Spain, France, Italy, Luxembourg and the Netherlands, an appeal in cassation, …’
14 Regulation (EU) No 1215/2012 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) repealed and replaced Regulation No 44/2001.
15 Article 66 of Regulation No 1215/2012 provides: ‘1. This Regulation shall apply only to legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded on or after 10 January 2015. 2. Notwithstanding Article 80, Regulation (EC) No 44/2001 shall continue to apply to judgments given in legal proceedings instituted, to authentic instruments formally drawn up or registered and to court settlements approved or concluded before 10 January 2015 which fall within the scope of that Regulation.’
16 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 Fútbol Club Barcelona had retained the services of the head of a doping ring in the cycling world. Many media outlets, Spanish media outlets in particular, shared that article. On 23 December 2006, Le Monde published a letter of denial it had received from Real Madrid, but made no comment on it.
17 On 25 May 2007, Real Madrid and AE, a member of its medical team, brought an action for damages before the Juzgado de Primera Instancia de Madrid (Court of First Instance, Madrid, Spain), based on harm done to their honour, against the newspaper company Société Éditrice du Monde and EE. 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 AE by way of compensation for non-material damage and ordered that its decision be published in the newspaper Le Monde and in a Spanish newspaper. That judgment was essentially upheld by a judgment of the Audiencia Provincial de Madrid (Provincial Court, Madrid, Spain). By judgment of 24 February 2014, the Tribunal Supremo (Supreme Court, Spain) dismissed the appeal lodged against the latter judgment.
18 By order of 11 July 2014, the Juzgado de Primera Instancia de Madrid (Court of First Instance, Madrid) ordered the enforcement of that judgment of the Tribunal Supremo (Supreme Court) and ordered Société Éditrice du Monde and EE to pay to Real Madrid the sum of EUR 300000 by way of principal amount plus EUR 90000 by way of interest and costs. By order of 9 October 2014, it also ordered the enforcement of that judgment and the payment to AE of the amount of EUR 30000 by way of principal amount plus EUR 3000 by way of interest and costs.
19 On 15 February 2018, the tribunal de grande instance de Paris (Regional Court, Paris, France) issued two declarations of enforceability relating to the judgment of 24 February 2014 of the Tribunal Supremo (Supreme Court) and those orders.
20 By judgments of 15 September 2020, the cour d’appel de Paris (Court of Appeal, Paris, France) overturned those declarations on the ground that that judgment and those orders were manifestly contrary to French international public policy and could not be enforced in France. In that regard, the cour d’appel de Paris (Court of Appeal, Paris) found, first, that the Spanish courts had ordered the defendants in the main proceedings to pay damages even though Real Madrid had not claimed any financial loss. Second, the only matter discussed before the Spanish court had been the media impact of the article at issue in the main proceedings, which had been refuted by the Spanish media, meaning that any damage arising from media impact had been limited by the denial. Third, the order to pay the sums of EUR 300000 by way of principal amount and EUR 90000 in interest and costs were made against a private individual and a newspaper publishing company and such an amount represented 50% of its net loss and 6% of its liquid assets as at 31 December 2017. Fourth, the orders to pay the sums of EUR 30000 by way of principal amount and EUR 3000 in interest and costs to AE were in addition to the previous orders. Lastly, it was extremely rare in France 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.
21 That court concluded that the penalties 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.
22 Real Madrid and AE brought an appeal in cassation against the judgments of 15 September 2020 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, arguing that a review of the proportionality of damages may be undertaken only where those damages are punitive in nature and not compensatory. Moreover, 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 Regulation No 44/2001. Lastly, that court had not taken account of the seriousness of the wrongs found by the Spanish court or the fact that the economic situation of the persons on whom financial penalties were imposed was not a relevant criterion in the assessment of whether the penalties awarded were disproportionate, which in any event should not be carried out by reference to national standards.
23 The referring court observes inter alia that, according to the case-law of the European Court of Human Rights, there is little scope under Article 10(2) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, signed at Rome on 4 November 1950 (‘the ECHR’) for restrictions on freedom of expression in two fields, namely that of political speech and matters of public interest (ECtHR, 23 April 2015, Morice v. France, CE:ECHR:2015:0423JUD002936910, § 125). A publication about sporting matters falls into the latter category (ECtHR, 26 April 2007, Colaco Mestre and SIC - Sociedade Independente de Comunicação, S.A. v. Portugal, CE:ECHR:2007:0426JUD001118203, § 28). In addition, the deterrent effect of an order to pay damages is a criterion in the assessment of the proportionality of compensation for defamatory statements. As regards, in particular, freedom of expression of journalists, it must be ensured that the amount of damages imposed on media organisations is not such as to threaten their economic foundations (ECtHR, 26 November 2013, Błaja News Sp. z o.o. v. Poland, CE:ECHR:2013:1126JUD005954510, § 71).
24 In those circumstances, the Court of Cassation (Cour de cassation) decided to stay proceedings and to refer the following questions to the Court of Justice for a preliminary ruling: ‘(1) Must Articles 34 and 36 of [Regulation No 44/2001] 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 in which enforcement is sought may find that the penalty is disproportionate only where the damages have been categorised as punitive either by the court of origin or by the court in which enforcement is sought and not where they have been awarded as compensation for non-material damage? (3) Must those provisions be interpreted as meaning that the court in which enforcement is sought may take account only of the deterrent effect of the penalty in the light of the resources of the person on whom the penalty is imposed, or may it have regard to other factors such as the seriousness of the wrong or the extent of the harm? (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?’
25 The Court notes, as a preliminary point, that the subject matter of the main proceedings concern an appeal in cassation relating to the revocation, under Article 45(1) of Regulation No 44/2001, of a declaration of enforceability establishing the enforceability in France of a judgment and two orders, delivered in Spain, on the ground that the enforcement thereof would entail a manifest infringement of the freedom of expression, enshrined in Article 11 of the Charter.
26 As regards the applicability ratione temporis of Regulation No 44/2001, Regulation No 1215/2012 provides in Article 66(2) that Regulation No 44/2001 is to continue to apply to legal proceedings instituted before 10 January 2015 and, therefore, to judgments delivered further to those proceedings. In the main proceedings, the judgment and the orders the enforceability of which is at issue were delivered further to an action brought in Spain before that date. Hence, as also observed by the European Commission, Regulation No 44/2001 is applicable ratione temporis in the main proceedings.
27 As regards the relevant provisions of that regulation for the purposes of the examination of the questions referred, the Court finds that the appeal in cassation brought before the referring court is an appeal within the meaning of Article 44 of Regulation No 44/2001, read in conjunction with Annex IV thereto. The grounds for non-enforceability on which a national court hearing an action within the meaning of Article 44 may base its decision are referred to in Article 45 of that regulation, paragraph 1 of which refers to the grounds of non-enforceability listed in Article 34 and 35 of that regulation, and paragraph 2 of which, like Article 36 of that regulation, provides that the foreign judgment enforceability of which is sought may not be reviewed as to its substance.
28 In those circumstances, the Court finds that, by its questions, which it is appropriate to consider together, the referring court asks, in essence, whether and, if so, in what circumstances, the enforcement of a judgment ordering a newspaper publishing house and one of its journalists to pay damages by way of compensation for non-material damage suffered by a sports club and one of the members of its medical team for harm to their reputation caused by the publication of information about them must be refused, on the combined basis of Article 34(1) and Article 45 of Regulation No 44/2001, on the ground that it is liable to give rise to a manifest breach of the freedom of the press as enshrined in Article 11 of the Charter and, therefore, a manifest breach of public policy in the Member State in which enforcement is sought.
29 As is apparent from recitals 16 and 17 of Regulation No 44/2001, the system of recognition and enforcement provided for therein is based on mutual trust in the administration of justice in the European Union. Such trust requires that judicial decisions given in one Member State must not only be recognised ipso jure in another Member State, but also that the procedure for making a decision given in another Member State enforceable in one Member State must be efficient and expeditious. According to the wording of recital 17 of that regulation, such a procedure must include only a simple formal check of the documents required for the granting of enforceability in the Member State in which enforcement is sought, the declaration of enforceability of a judgment being issued almost automatically (see, to that effect, judgment of 12 December 2019, Aktiva Finants, C‑433/18, EU:C:2019:1074, paragraph 23).
30 Thus, under Article 33(1) of Regulation No 44/2001, a judgment given in a Member State is to be recognised in other Member States, without any special procedure being required and, under Article 38(1) of that same regulation, is to be enforced in another Member State when, on the application of any interested party, it has been declared enforceable there.
31 As is apparent from recitals 16 to 18 of that regulation, the system of appeals for which it provides against the recognition or enforcement of a judgment aims to establish a fair balance between, on the one hand, mutual trust in the administration of justice in the European Union, which justifies judgments given in a Member State being, as a rule, recognised and declared enforceable automatically in another Member State and, on the other hand, respect for the rights of the defence, which means that the defendant should, where necessary, be able to appeal in an adversarial procedure against the declaration of enforceability if he considers one of the grounds for non-enforcement to be present (judgments of 28 April 2009, Apostolides, C‑420/07, EU:C:2009:271, paragraph 73, and of 7 July 2016, Lebek, C‑70/15, EU:C:2016:524, paragraph 36).
32 In that latter regard, Article 45(1) of Regulation No 44/2001 circumscribes the possibility of refusing or revoking a declaration of enforceability of a judgment to one of the grounds set out in Articles 34 and 35 of that regulation.
33 Article 34(1) of Regulation No 44/2001 provides that a judgment must not be recognised if such recognition is manifestly contrary to public policy in the Member State in which recognition is sought.
34 According to the Court’s settled case-law, Article 34(1) of Regulation No 44/2001 must be interpreted strictly, inasmuch as it constitutes an obstacle to the attainment of one of the fundamental objectives of that regulation. It should accordingly come into play only in exceptional cases (judgments of 28 April 2009, Apostolides, C‑420/07, EU:C:2009:271, paragraph 55, and of 20 June 2022, London Steam-Ship Owners’ Mutual Insurance Association, C‑700/20, EU:C:2022:488, paragraph 77 and the case-law cited).
35 As regards, in particular, Article 34(1), while the Member States remain in principle free, by virtue of the proviso in that provision, to determine, according to their own national laws and practices, what the requirements of their public policy are, the limits of that concept are a matter of interpretation of that regulation. 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 another Member State (see, to that effect, judgments of 28 April 2009, Apostolides, C‑420/07, EU:C:2009:271, paragraphs 56 and 57, and of 16 July 2015, Diageo Brands, C‑681/13, EU:C:2015:471, paragraph 42).
36 In that regard, it must be observed that, by disallowing any review of a foreign judgment as to its substance, Article 36 and Article 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 Member State of origin and that which would have been applied by the court of the Member 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 judgments of 28 April 2009, Apostolides, C‑420/07, EU:C:2009:271, paragraphs 58, and of 25 May 2016, Meroni, C‑559/14, EU:C:2016:349, paragraph 41).
37 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 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 enforcement is sought or of a right recognised as being fundamental within that legal order (judgments of 28 April 2009, Apostolides, C‑420/07, EU:C:2009:271, paragraph 59, and of 25 May 2016, Meroni, C‑559/14, EU:C:2016:349, paragraph 42).
38 Thus, the court of the Member State in which enforcement is sought cannot, without undermining the aim of Regulation No 44/2001, refuse recognition of a judgment emanating from another Member State solely on the ground that it considers that national or EU law was misapplied in that judgment. On the contrary, it must be considered that, in such cases, the system of legal remedies established in each Member State, together with the preliminary ruling procedure provided for in Article 267 TFEU, affords a sufficient guarantee to individuals. The public policy clause would apply in such cases only where that error of law means that the recognition or enforcement of the judgment in the Member State in which enforcement is sought would be regarded as a manifest breach of an essential rule of law in the legal order of that Member State (see, to that effect, judgment of 28 April 2009, Apostolides, C‑420/07, EU:C:2009:271, paragraph 60).
39 The fact that the manifest error in question concerns a rule of EU law, and not a rule of national law of the Member State in which enforcement is sought, does not alter the conditions for reliance upon the public policy clause for the purpose of Article 34(1) of Regulation No 44/2001, irrespective of whether it is a substantive or procedural legal rule. In accordance with settled case-law, 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. Consequently, the public policy clause would apply only where the recognition or enforcement of the judgment concerned in the Member State in which enforcement is sought would result in the manifest breach of a rule of law regarded as essential in the EU legal order or of a right recognised as being fundamental within that legal order and therefore in the legal order of that Member State (see, to that effect, judgments of 16 July 2015, Diageo Brands, C‑681/13, EU:C:2015:471, paragraph 48, and of 7 September 2023, Charles Taylor Adjusting, C‑590/21, EU:C:2023:633, paragraph 36 and the case-law cited).
40 The Court has held previously that this holds particularly true for fundamental rights recognised at EU level (see, to that effect, judgment of 28 March 2000, Krombach, C‑7/98, EU:C:2000:164, paragraph 38).
41 Since the application of Regulation No 44/2001 by a national court constitutes an implementation of EU law within the meaning of Article 51(1) of the Charter, that court must comply with the requirements flowing from the fundamental rights enshrined in the Charter, particularly when it is hearing an action brought under Article 43 or Article 44 of Regulation No 44/2001, aimed at verifying the presence of a ground for refusal to enforce (see, to that effect, judgments of 25 May 2016, Meroni, C‑559/14, EU:C:2016:349, paragraph 44, and of 7 May 2020, Rina, C‑641/18, EU:C:2020:349, paragraph 55).
42 In that light, it should be noted that the principle of mutual trust between the Member States is of fundamental importance in EU law, given that it allows an area without internal borders to be created and maintained. That principle requires, particularly with regard to the area of freedom, security and justice, each of those States, save in exceptional circumstances, to consider all the other Member States to be complying with EU law and particularly with the fundamental rights recognised by EU law (Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014, EU:C:2014:2454, paragraph 191).
43 Thus, when implementing EU law, the Member States may, under EU law, be required to presume that fundamental rights have been observed by the other Member States, so that not only may they not demand a higher level of national protection of fundamental rights from another Member State than that provided by EU law, but, save in exceptional cases, they may not check whether that other Member State has actually, in a specific case, observed the fundamental rights guaranteed by the EU (Opinion 2/13 (Accession of the European Union to the ECHR) of 18 December 2014, EU:C:2014:2454, paragraph 192).
44 Therefore, it is only if the enforcement of a judgment in the Member State in which enforcement is sought would give rise to a manifest breach of a fundamental right as enshrined in the Charter, that a court of that Member State is, as observed by the Advocate General in point 189 of his Opinion, required under Article 34(1) and Article 45 of Regulation No 44/2001 to refuse to enforce that judgment or, as the case may be, revoke the declaration of enforceability pertaining to that judgment.
45 Under Article 11(1) of the Charter, everyone has the right to freedom of expression, which includes the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
46 When journalists and/or publishers and press organisations are concerned by the publication of a press article, freedom of expression and information is specifically protected by Article 11(2) of the Charter, which provides that the freedom and pluralism of the media are to be respected.
47 The rights and freedoms enshrined in Article 11 of the Charter are not absolute rights, but must be considered in relation to their function in society (see, to that effect, judgment of 6 October 2020, La Quadrature du Net and Others, C‑511/18, C‑512/18 and C‑520/18, EU:C:2020:791, paragraph 120 and the case-law cited).
48 Indeed, as can be seen from Article 52(1) of the Charter, that provision allows limitations to be placed on the exercise of those rights and freedoms, provided that those limitations are provided for by law, that they respect the essence of those rights and freedoms and that, in compliance with the principle of proportionality, they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.
49 In that regard, it must be remembered that Article 11 of the Charter constitutes one of the essential foundations of a pluralist, democratic society, and is one of the values on which, under Article 2 TEU, the European Union is founded (see, to that effect, judgments of 21 December 2016, Tele2 Sverige and Watson and Others, C‑203/15 and C‑698/15, EU:C:2016:970, paragraph 93, and of 23 April 2020, Associazione Avvocatura per i diritti LGBTI,C‑507/18, EU:C:2020:289, paragraph 48). In such a context, interferences with the rights and freedoms guaranteed by Article 11 must be limited to what is strictly necessary (see, to that effect, judgment of 6 March 2001, Connolly v Commission, C‑274/99 P, EU:C:2001:127, paragraph 41).
50 That is particularly the case for interferences concerning journalists and also publishers and press organisations, given the importance of the press in a democratic society governed by the rule of law (see, to that effect, judgments of 1 December 2011, Painer, C‑145/10, EU:C:2011:798, paragraph 113, and of 29 July 2019, Spiegel Online, C‑516/17, EU:C:2019:625, paragraph 72).
51 Moreover, in accordance with Article 52(3) of the Charter, the rights contained therein have the same meaning and scope as the corresponding rights guaranteed by the ECHR, although that does not preclude EU law from affording more extensive protection (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).
52 Therefore, when interpreting Article 11 of the Charter, the Court must take account of the corresponding rights guaranteed by Article 10 ECHR, as interpreted by the European Court of Human Rights, as the minimum threshold of protection (see, to that effect, judgments of 15 March 2022, Autorité des marchés financiers, C‑302/20, EU:C:2022:190, paragraph 67, and of 12 January 2023, Migracijos departamentas (Reasons for persecution on the ground of political opinion), C‑280/21, EU:C:2023:13, paragraph 29 and the case-law cited).
53 According to the settled case-law of the European Court of Human Rights, exceptions to the freedom of expression are to be construed strictly and Article 10(2) ECHR leaves little scope for restrictions on freedom of expression in the fields of political speech and matters of public interest (see, to that effect, ECtHR, 17 December 2004, Pedersen and Baadsgaard v. Denmark, CE:ECHR:2004:1217JUD004901799, § 71; ECtHR, 23 April 2015, Morice v. France, CE:ECHR:2015:0423JUD002936910, §§ 124 and 125; and ECtHR, 17 January 2017, Tavares de Almeida Fernandes and Almeida Fernandes v. Portugal, CE:ECHR:2017:0117JUD003156613, § 55).
54 Public interest ordinarily relates to matters in which the public may legitimately take an interest, which attract its attention or which concern it to a significant degree, especially in that they affect the well-being of citizens or the life of the community. That category includes matters relating to professional sports (see, to that effect, ECtHR, 22 February 2007, Nikowitz and Verlagsgruppe News GmbH v. Austria, CE:ECHR:2007:0222JUD000526603, § 25, and ECtHR, 27 June 2017, Satakunnan Markkinapörssi Oy and Satamedia Oy v. Finland, CE:ECHR:2017:0627JUD000093113, § 171) and, therefore, those relating to doping in professional sport.
55 In that context, the European Court of Human Rights emphasises the fundamental role played by the press in a democratic society, with the result that the guarantees to be given to it are of particular importance. Although the press must not overstep certain bounds, particularly as regards the reputation and rights of others, its duty is nevertheless to impart - in a manner consistent with its obligations and responsibilities - information and ideas on all matters of public interest. Were it otherwise, the press would be unable to play its vital role of ‘public watchdog’. Thus, considerable weight must be attached to the interest of a democratic society in ensuring and maintaining a free press in the determination, as is required under Article 10(2) ECHR, of whether the interference in question is proportionate to the legitimate aim pursued (see, to that effect, ECtHR, 23 September 1994, Jersild v. Denmark, CE:ECHR:1994:0923JUD001589089, § 31; ECtHR, 21 January 1999, Fressoz and Roire v. France, CE:ECHR:1999:0121JUD002918395, § 45; and ECtHR, 16 June 2015, Delfi AS v. Estonia, CE:ECHR:2015:0616JUD006456909, § 132).
56 Those principles apply not only to journalists but also to publishers, who participate fully in freedom of expression and share the duties and responsibilities referred to in Article 10(2) ECHR (see, to that effect, ECtHR, 15 January 2009, Orban and Others v. France, CE:ECHR:2009:0115JUD002098505, § 47).
57 Although the parties injured by defamatory statements or other types of unlawful content must have the possibility of seeking damages such as to constitute an effective remedy for harm to their reputation, any judgment awarding damages for harm to reputation must comprise a reasonable relationship of proportionality between the amount awarded and the harm in question (see, to that effect, ECtHR, 15 February 2005, Steel and Morris v. the United Kingdom, CE:ECHR:2005:0215JUD006841601, § 96; ECtHR, 16 June 2015, Delfi AS v. Estonia, CE:ECHR:2015:0616JUD006456909, §§ 110 and 131; and ECtHR, 17 January 2017, Tavares de Almeida Fernandes and Almeida Fernandes v. Portugal, CE:ECHR:2017:0117JUD003156613, § 77).
58 In that regard, there is a difference between a sanction in favour of a legal entity and one in favour of an individual, since harm to an individual’s reputation may have repercussions on the individual’s dignity, whereas the reputation of a legal entity is devoid of that moral dimension (see, to that effect, ECtHR, 15 February 2005, Steel and Morris v. the United Kingdom, CE:ECHR:2005:0215JUD006841601, § 94; ECtHR, 19 July 2011, UJ v. Hungary, CE:ECHR:2011:0719JUD002395410, § 22; and ECtHR, 11 January 2022, Freitas Rangel v. Portugal, CE:ECHR:2022:0111JUD007887313, §§ 48, 53 and 58).
59 Nevertheless, it should be borne in mind that the European Court of Human Rights examines the proportionality of the interferences on the basis of the same criteria in respect of a legal entity as it does in respect of an individual (see, to that effect, ECtHR, 5 December 2017, Frisk and Jensen v. Denmark, CE:ECHR:2017:1205JUD001965712, § 55).
60 As regards the proportionality of a sanction, any undue restriction on freedom of expression entails a risk of obstructing or paralysing future media coverage of similar questions. What matters is the very fact of judgment being given against the person concerned, even where such a ruling is solely civil in nature and the sanction imposed is a minor one (see, to that effect, ECtHR, 10 November 2015, Couderc and Hachette Filipacchi associés v. France, CE:ECHR:2015:1110JUD004045407, § 151, and ECtHR, 25 February 2016, Société de conception de presse et d’édition v. France, CE:ECHR:2016:0225JUD000468311, § 49).
61 In particular, according to the case-law of the European Court of Human Rights, the most careful scrutiny on the part of the Court of Justice is called for when, as in the present case, the measures taken or sanctions imposed are capable of discouraging the participation of the press in debates over matters of legitimate public concern and, therefore, have a deterrent effect on the exercise of the freedom of the press in respect of such matters (see, to that effect, ECtHR, 20 May 1999, Bladet Tromsø and Stensaas v. Norway, CE:ECHR:1999:0520JUD002198093, § 64, and ECtHR, 17 December 2004, Cumpănă and Mazăre v. Romania, CE:ECHR:2004:1217JUD003334896, § 111).
62 In that regard, it must be held that large damages awards which are unpredictable or high compared to awards made in comparable libel cases are considered capable of having a chilling effect on the exercise of freedom of the press (see, to that effect, ECtHR, 7 December 2010, Público - Comunicação Social, S.A. and Others v. Portugal, CE:ECHR:2010:1207JUD003932407, § 55, and ECtHR, 15 June 2017, Independent Newspapers (Ireland) Limited v. Ireland, CE:ECHR:2017:0615JUD002819915, §§ 84 and 85).
63 Moreover, given the fundamental role of the press in a democratic society and the guarantees it must have in accordance with the case-law referred to in paragraph 55 above, that is, as a general rule, the case when the judgment consists in awarding the injured party compensation exceeding the material or non-material harm suffered.
64 Such a deterrent effect may even result from an award of a relatively modest amount, in the light of the standards applied in comparable defamation cases. That is, in principle, the case when the amounts awarded turn out to be substantial compared to the resources of the person against whom judgment is given (see, to that effect, ECtHR, 15 February 2005, Steel and Morris v. the United Kingdom, CE:ECHR:2005:0215JUD006841601, § 96), whether it is a journalist or publisher.
65 In order to determine the proportionality of the damages awarded, account must also be taken of the other sanctions imposed, such as the publication of a denial, a corrigendum or even a formal apology and legal costs awarded to the person against whom judgment is given (see, to that effect, ECtHR, 11 December 2012, Ileana Constantinescu v. Romania, CE:ECHR:2012:1211JUD003256304, § 49; ECtHR, 10 November 2015, Couderc and Hachette Filipacchi associés v. France, CE:ECHR:2015:1110JUD004045407, § 152; and ECtHR, 27 June 2017, Ghiulfer Predescu v. Romania, CE:ECHR:2017:0627JUD002975109, § 61).
66 It is apparent from the foregoing that, under Article 34(1) and Article 45 of Regulation No 44/2001, the enforcement of a judgment ordering a newspaper publishing house and one of its journalists to pay damages by way of compensation for non-material damage suffered by a sports club and one of the members of its medical team for harm to their reputation caused by the publication in that newspaper of information about them must be refused when it is liable to give rise to a manifest breach of the rights and freedoms as enshrined in Article 11 of the Charter.
67 Such a manifest breach of Article 11 of the Charter comes within public policy in the Member State in which enforcement is sought and therefore constitutes the ground for refusal laid down in Article 34(1) of Regulation No 44/2001, read in conjunction with Article 45 thereof.
68 It is for the referring court to determine, taking account of all of the circumstances of the case, including not only the resources of the persons against whom judgment is given but also the seriousness of their wrong and the extent of the harm as found in the judgments at issue in the main proceedings, whether the enforcement of those judgments would, in the light of the criteria set out in paragraphs 53 to 64 above, give rise to a manifest breach of the rights and freedoms as enshrined in Article 11 of the Charter.
69 It is for that court to ascertain whether the damages awarded in those judgments are manifestly disproportionate to the reputational harm in question and thus risk having a deterrent effect on future media coverage of similar matters in the Member State in which enforcement is sought or, more generally, on the exercise of the freedom of the press, as enshrined in Article 11 of the Charter.
70 In that context, it should be noted that, although the referring court may take account of the amounts awarded for similar harm in the Member State in which enforcement is sought, any discrepancy between those amounts and the amount of damages awarded in those judgments is not in itself sufficient for a finding that those damages are, automatically and without subsequent verification, manifestly disproportionate to the reputational harm in question.
71 Moreover, as the verification to be made by the referring court is aimed solely at identifying a manifest breach of the rights and freedoms enshrined in Article 11 of the Charter, it cannot involve a review of the substantive assessments carried out by the court in the Member State of origin, as that would amount to a review of the merits, which is expressly prohibited by Article 36 and Article 45(2) of Regulation No 44/2001. Thus, in the present case, the referring court may not, inter alia, examine whether, in publishing the article at issue in the main proceedings, EE and Société Éditrice du Monde acted in a manner consistent with their obligations and responsibilities, or call into question the findings of the Tribunal Supremo (Supreme Court) in its judgment of 24 February 2014 concerning the seriousness of the wrong by EE or Société Éditrice du Monde or the extent of the harm suffered by Real Madrid and AE.
72 Given the questions posed by the referring court, it should also be pointed out, as is apparent from paragraph 58 and 63 above, that the possibility cannot be ruled out that that court may be led, in the light of all the circumstances of the case, to find that there is a manifest breach of the freedom of the press resulting from the enforcement of the judgments at issue in the main proceedings as regards only one of the applicants or one of the defendants referred to in those judgments.
73 Should it find that there is a manifest breach of the freedom of the press, that court should limit the refusal to enforce those judgments to the manifestly disproportionate portion, in the Member State in which enforcement is sought, of the damages awarded.
74 It follows from the foregoing that the answer to the questions referred is that Article 34(1) and Article 45 of Regulation No 44/2001, read in conjunction with Article 11 of the Charter, must be interpreted as meaning that the enforcement of a judgment ordering a newspaper publishing house and one of its journalists to pay damages by way of compensation for the non-material damage suffered by a sports club and one of the members of its medical team due to harm caused to their reputation by the publication of information about them must be refused where it would give rise to a manifest breach of the freedom of the press, as enshrined in Article 11 of the Charter, and thus an infringement of public policy in the Member State in which enforcement is sought.
75 Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the referring court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.