Summaries of judgments made in collaboration with the Portuguese judge and référendaire of the CJEU (Nuno Piçarra and Sophie Perez)
Judgment of the Court (Grand Chamber) of 4 October 2024, Real Madrid Club de Fútbol, Case C-633/22, EU:C:2024:843
Reference for a preliminary ruling – Area of freedom, security and justice – Judicial cooperation in civil matters – Jurisdiction and the enforcement of judgments in civil and commercial matters – Regulation (EC) No 44/2001 – Articles 34 and 45 – Recognition and enforcement of judgments – Revocation of a declaration of enforceability of judgments – Grounds for refusal – Public policy in the State in which recognition is sought – Penalty imposed on a newspaper and one of its journalists for harm caused to the reputation of a sports club – Damages – Article 11 of the Charter of Fundamental Rights of the European Union – Freedom of the press.
Facts
In 2014, the newspaper Le Monde and one of its journalists were convicted in Spain for the publication in 2006 of an article claiming that the football club Real Madrid had retained the services of the head of a doping ring in the cycling world. The Spanish court ordered them to pay EUR 300 000 to Real Madrid and EUR 30 000 to a member of the medical team of that club, by way of compensation for non-material damage suffered.
In 2018, the tribunal de grande instance de Paris (Regional Court, Paris, France) issued two declarations of enforceability relating to the judgments given in Spain. However, in 2020, the cour d’appel de Paris (Court of Appeal, Paris, France) overturned those declarations on the ground that those judicial decisions were manifestly contrary to French international public policy, by interfering with freedom of expression, and could not be enforced in France. 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.
Real Madrid and the member of its medical team brought an appeal in cassation before the Cour de cassation (Court of Cassation, France). The Cour de cassation asked the ECJ whether a breach of the freedom of the press is liable to justify to refuse or to revoke a declaration of enforceability of a judgment, on the combined basis of Article 34(1) and Article 45 of Regulation No 44/2001.
Findings of the ECJ
Article 45(1) of Regulation No 44/2001 limits the possibility of refusing or revoking a declaration of enforceability of a judgment on one of the grounds set out in Articles 34 and 35 of that regulation. 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.
In that regard, the ECJ recalls that recourse to the public policy exception provided for by this last provision ‘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’ and that such an 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’. The Court has held previously that this holds particularly true for fundamental rights recognised at EU level. Consequently, where 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, a court of that Member State is 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.
In its judgment, the ECJ considers that ‘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’. The ECJ thus interprets those provisions 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 of Fundamental Rights, and thus an infringement of public policy in the Member State in which enforcement is sought’.
On the basis of its case-law, as well as the case-law of the ECtHR pursuant to Article 52(3) of the Charter, the ECJ points out that, 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. However, any judgment awarding damages for harm to reputation must comprise a reasonable relationship of proportionality between the amount awarded and the harm in question. In particular, 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, which 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.
In casu, it is for the referring court to determine, taking account of all of the circumstances of the case, whether the damages awarded in the judgments at issue in the main proceedings 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. In any event, 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. Moreover, 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.
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Judgment of the Court (Grand Chamber) of 15 October 2024, KUBERA, Case C-144/23, EUSCAK-2024-881
Reference for a preliminary ruling – Article 267 TFEU – Scope of the obligation on national courts or tribunals of last instance to make a reference for a preliminary ruling – Proceedings relating to the grant of leave to appeal on a point of law to the supreme court of a Member State – Request by the party seeking leave to appeal on a point of law that a question concerning the interpretation of EU law be referred to the Court of Justice – National legislation under which leave to appeal on a point of law is to be granted if the appeal raises a question of law that is important for ensuring legal certainty, the uniform application of the law or its development – Obligation for the national supreme court to consider, in proceedings relating to the grant of leave to appeal on a point of law, whether a reference for a preliminary ruling should be made – Statement of reasons for the decision refusing leave to appeal on a point of law.
Facts
KUBERA, a food and beverages trading company, purchased cans of Red Bull manufactured in Austria and transported them by ship to the port of Koper (Slovenia) for import. By two decisions of 5 October 2021, the Slovenian authorities decided to detain those cans, pursuant to Article 17 of Regulation No 608/2013, pending the outcome of judicial proceedings initiated by Red Bull, the holder of intellectual property rights relating to those cans, in order to protect those rights. Following the dismissal of the administrative appeals brought against those decisions, KUBERA brought actions against those decisions before the Upravno sodišče (Administrative Court, Slovenia), which dismissed them.
KUBERA submitted two applications to the Vrhovno sodišče (Supreme Court, Slovenia) for leave to appeal on a point of law against the judgments of the Upravno sodišče. KUBERA argued that the dispute raises a question of interpretation of Regulation No 608/2013 which, in its view, constitutes an important legal question within the meaning of the relevant national procedural provision justifying the admissibility of appeals on a point of law. In the event that the Vrhovno sodišče did not agree with that assessment, KUBERA asked that question be referred to the ECJ for a preliminary ruling.
In its request for a preliminary ruling, the Vrhovno sodišče explains that leave to appeal on a point of law depends on the significance of the legal issue raised by one of the parties to the dispute with respect to legal certainty, the uniform application of the law or its development. Taking the view that KUBERA’s applications for leave to appeal on a point of law do not satisfy the conditions laid down by national law, the Vrhovno sodišče wonders, however, whether Article 267(3) TFEU requires it, in order to decide on those applications, to examine KUBERA’s application for a preliminary ruling to be made to the ECJ.
Findings of the ECJ
In its judgment, the ECJ interprets Article 267(3) TFEU as ‘precluding a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law from deciding – in proceedings relating to the examination of an application for leave to appeal on a point of law the outcome of which depends on the significance of the legal issue raised by one of the parties to the dispute with respect to legal certainty, the uniform application of the law or its development – to refuse such an application for leave without having assessed whether it was obliged to submit to the Court of Justice for a preliminary ruling a question concerning the interpretation or validity of a provision of EU law raised in support of that application.’
The ECJ points out, first of all, that, although EU law does not, in principle, preclude Member States from establishing procedures for granting leave to appeal or other selection or ‘filtering’ systems for bringing matters before the national supreme courts, the implementation of such procedures or systems must meet the requirements deriving from EU law, particularly from Article 267 TFEU. In particular, the existence, as in the case in the main proceedings, of such a procedure cannot transform the lower court or tribunal whose decision may be challenged in such an appeal into a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law and which, as a result, is under an obligation to make a reference to the ECJ as provided for in Article 267(3) TFEU. However, a national supreme court, such as the Vrhovno sodišče, is under such an obligation.
The referring court explains that it is not required to determine, at the stage of the examination of the application for leave to appeal on a point of law, whether or not it is necessary, in the context of the procedure relating to appeals on a point of law, to submit to the ECJ for a preliminary ruling the question of EU law raised in support of that application. Moreover, when leave to appeal on a point of law is not granted, the decision refusing leave definitively brings the procedure to an end. In that case, the lower court’s interpretation of EU law could prevail in the national legal order concerned, even though the question raised in support of the application for leave to appeal on a point of law would have warranted a reference for a preliminary ruling.
In this context, the ECJ observes that such legislation or national practices can lead to a situation in which a question concerning the interpretation or validity of a provision of EU law, despite being raised by a party before a national supreme court or having to be raised by that court by virtue of its obligation under Article 267(3) TFEU, would not be submitted to the ECJ, in breach of that provision. The ECJ points out that ‘such a situation is capable of undermining the effectiveness of the system of cooperation between the national courts and tribunals and the Court of Justice established in Article 267 TFEU, and the achievement of the objectives which that article is intended to achieve, particularly that of preventing a body of national case-law that is not in accordance with the rules of EU law from being established in any of the Member States.’ In accordance of the principle that national law should be interpreted in conformity with EU law, it is for the Vrhovno sodišče to determine whether it is possible to interpret the national legislation at issue in the main proceedings in accordance with the requirements of Article 267 TFEU. That appears to be the case as, according to the information provided to the ECJ, the Vrhovno sodišče is not precluded from assessing, in the context of the procedure for examining an application for leave to appeal on a point of law, whether the question concerning the interpretation or validity of a provision of EU law raised in support of that application requires that a reference for a preliminary ruling be made to the ECJ or, instead, falls within one of the exceptions to the obligation laid down in Article 267(3) TFEU.
In that regard, the ECJ adds that, in the light of Article 47(2) of the Charter, Article 267 TFEU must be interpreted as meaning that ‘a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law must set out, in its decision refusing an application for leave to appeal on a point of law containing a request that a question concerning the interpretation or validity of a provision of EU law be referred to the Court of Justice for a preliminary ruling, the reasons why that reference was not made, namely that that question is irrelevant for the resolution of the dispute or that the provision of EU law in question has already been interpreted by the Court or that the correct interpretation of EU law is so obvious as to leave no scope for any reasonable doubt.’
