Article 11 - Freedom of expression and information
Article 51 - Field of application
Article 52 - Scope and interpretation
Key facts of the case:
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
Outcome of the case:
On those grounds, the Court (Grand Chamber) hereby rules:
Article 34(1) and Article 45 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 11 of the Charter of Fundamental Rights of the European Union, 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 of Fundamental Rights, and thus an infringement of public policy in the Member State in which enforcement is sought.
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.
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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).
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 25 May 2016, 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).
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.
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.
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.
