Abstract
In the Real Madrid case, the Court was asked if a domestic court could rely on the public policy exception to refuse the execution of a judgment that could give rise to a manifest breach of the freedom of the press. The first analyses of the judgment predominately look at it from the angle of freedom of expression and freedom of the press, often framing the case as one of the first instances of the Court of Justice dealing with so-called SLAPP suits. Yet the Real Madrid judgment is also of fundamental importance from a different, more constitutional point of view. This case note will focus on two separate but related points. First, we will discuss the case in light of the delicate balance between the prohibition of substantive review of other Member States courts’ judgments and effective public policy control. Second, we will broaden the perspective and place this case in a larger development that has been taking place in the European legal space, in which tension is building between the application of the principle of mutual trust on the one hand, and the respect for the Union’s founding values, including fundamental rights, on the other.
Keywords
Introduction
With a factual backdrop including internationally renowned football teams, claims of doping, alleged SLAPP suits, cross-border litigation and a domestic court invoking the public policy exception, the Real Madrid case had all the elements to become a well-known case in EU law. 1 It is no wonder, then, that scholars were already paying attention to it well before the final judgment came out. 2 On 4 October 2024, the Grand Chamber of the European Court of Justice (‘ECJ’) ruled that the public policy exception within the Brussels I Regulation must be interpreted in such a sense that a domestic court is required to refuse the enforcement of a judgment issued by a court in another Member State if that enforcement would give rise to a manifest breach of the freedom of the press enshrined in Article 11 of the Charter of Fundamental Rights (‘CFR’), and thus an infringement of public policy in the Member State in which enforcement is sought.
The legal community was fast to comment on this important judgment. So far, these commentaries predominantly look at the Real Madrid judgment from the angle of freedom of expression and freedom of the press, often interpreting the case as one of the first instances of the ECJ dealing with so-called SLAPP suits. 3 Yet, as the Court was asked whether the public policy exception could be invoked over concerns of a breach of a substantive fundamental right, the Real Madrid judgment is of fundamental importance as well from a different, more constitutional point of view. As such, the case was another important step in a saga of cases that have been reaching the Court for almost a decade now, in which it is asked to strike a balance between considerations of mutual trust on the one hand, and the effective protection of fundamental rights on the other. It is this angle of the Real Madrid judgment – which has remained largely unexplored so far in the existing commentaries of the judgment – that will be the focus of this case note.
In what follows, we will first give a concise overview of the facts of the case, the Opinion of Advocate General Szpunar and the judgment of the Court. Our analysis of the case will then focus on two separate but related points. First, we will discuss the case in light of the Brussels I Regulation and how the Court tried to strike a delicate balance between the prohibition of substantive review of other Member States courts’ judgments and effective public policy control. Second, we will broaden the perspective and place this case in a larger development that has been taking place in the European legal space, in which tension is building between the application of the principle of mutual trust on the one hand, and the respect for the Union’s founding values, including fundamental rights, on the other.
Facts of the case
The facts of the case underlying the Real Madrid judgment can be summarized as follows. On 7 December 2006, the French newspaper Le Monde published an article in which one of its journalists claimed that the football clubs Real Madrid and Barcelona had been using the services of the head of a doping ring from the cycling world. The article was picked up by other media, especially in Spain, and shared widely. As a response, Real Madrid as well as one of its medical staff members, initiated an action for damages before the Spanish courts, for alleged harm done to their honour and reputation. Ultimately, the courts awarded 300,000 euros of damages to Real Madrid, and 30,000 to the staff member.
In 2018, a French court issued two declarations of enforceability concerning the Spanish judgments. On appeal initiated by Le Monde, the Paris Court of Appeal overturned these declarations on the ground that the Spanish judgments were manifestly contrary to French public policy and could thus not be enforced in France. It argued, among other things, that the sums imposed were too high, constituting 50% of the newspaper’s net loss and 6% of its liquid assets, and that in France it was extremely rare to impose such high fines for alleged harm done to somebody’s honour or good name. It thus concluded that the penalties had a deterring effect for the newspaper to take part in a discussion of public interest and curtailed the media’s ability to perform its information and monitoring role. Because of this, the recognition or enforcement of the judgments would be at variance to an unacceptable degree with French international public policy by interfering with the freedom of expression.
Real Madrid appealed to the French Court of Cassation, arguing that the Paris Court of Appeal had essentially reviewed the substance of the Spanish judgments in breach of the Brussels I Regulation. The Court of Cassation decided to stay the proceedings and referred seven questions to the ECJ. The first, most fundamental, question asked, in essence, whether Articles 34 and 36 of the Brussels I Regulation and Article 11 CFR must be interpreted in a way that a domestic court may refuse to enforce a judgment if it imposes a financial penalty imposed for harm caused to a reputation, which may manifestly infringe the freedom of expression. The other questions aimed to elucidate various aspects of how the referring court was supposed to perform that examination.
Advocate General’s Opinion
In an extensive, noteworthy Opinion, Advocate General Szpunar tackled the case in various steps. He first delved into the public policy clause, enshrined in Article 34(1) of the Brussels I Regulation, explaining the concept as it had been defined in the existing case law and the role that the Court is expected to play in this type of cases. 4 Second, he expounded on the freedom of the press enshrined in Article 11(2) CFR, and questioned whether that provision constitutes a fundamental principle which can justify recourse to the public policy exception in case it is manifestly breached. Given the crucial role that the freedom of the press plays in a democratic society, he concluded that this is indeed the case. 5 After solving the principal issue at stake in this case, the Advocate General thirdly turned to the other questions from the referring court and discussed the criteria that could be used by the enforcing court to assess whether such a manifest breach had occurred, in light of the principle of mutual trust and the prohibition on review of the substance. 6 Finally, he gave some concluding thoughts on the relevance in this case of the principle of the presumption of equivalent protection, which flows from the case law of the European Court of Human Rights. 7 The Advocate General concluded that in a case like this, the public policy exception within the Brussels I Regulation requires that a court refuses to enforce a judgment where such enforcement would give rise to a manifest breach of the freedom of expression guaranteed in Article 11 CFR. Such a breach would take place, where the judgment in question gives rise to a potential deterrent effect in a debate on a matter of public policy interest, meaning that the overall sum of the payment is manifestly unreasonable having regard to the nature and the economic situation of the person concerned. 8
Judgment of the Court
The Court, in turn, also wrote a well-structured judgment, which is built in three steps. In a first step, the Court discussed the public policy exception within the Brussels I Regulation. It stressed the importance of the principle of mutual trust that underpins the duty for Member States courts to enforce each other’s judgments. Any exception to this rule must thus be interpreted strictly. 9 It then reiterated the main principles on the role that the courts must play when the assessment of the public policy principle is concerned. Importantly, the ECJ then clarified that the public policy exception may be relied on both for rules that are considered essential or fundamental in the EU legal order or the legal order of a Member State, and that this is irrespective of whether it is a substantive or procedural rule. 10 This holds particularly true for fundamental rights recognized at the EU level. 11 Nevertheless, according to long-standing case law, the Member States’ courts are in principle required to presume that fundamental rights are being respected by other Member States so that they may not check whether the other Member State has, in a specific case, observed the fundamental rights issue guaranteed by EU law. 12 The Court concluded then that it is only if the enforcement of a judgment would give rise to a manifest breach of a fundamental right as enshrined in the Charter, that a court of a Member State is required under the Brussels I Regulation to refuse such enforcement. 13
In a second step, the Court discussed Article 11 CFR. It reiterated that the freedom of expression and freedom of the press constitute the essential foundations of a pluralist, democratic society, governed by the rule of law. The Court then spent several paragraphs discussing the criteria that should be taken into account to assess the proportionality of the interference with these rights. 14 In this respect, it is particularly noteworthy that the Court extensively relied on the case law of the Strasbourg Court, seemingly aiming for a large concordance with the Strasbourg Court’s case law on freedom of expression.
In a third and final step, the ECJ brought the two previous steps together and assessed the public policy exception in light of Article 11 CFR. It concluded that a Member State court is required to refuse the enforcement of a judgment by a court from a different Member State if it is of the opinion that, taking account of all the circumstances of the case, such enforcement would give rise to a manifest breach of Article 11 CFR. However, the Court immediately stressed that, since such a verification is aimed solely at identifying a manifest breach, it cannot involve a review of the substantive assessments carried out by the Member State court, as that would amount to a prohibited review of the merits. 15 Finally, should the national court find that there is a manifest breach, it should limit the refusal of enforcement to the manifestly disproportionate portion, in the Member State in which enforcement is sought, of the damages awarded. 16
Analysis
As mentioned earlier, the Real Madrid judgment immediately brought about several enthusiastic commentaries from legal scholars. Those commentaries predominately honed in on the freedom-of-expression angle of the judgment, often discussing it in light of the increasingly prevalent topic of SLAPP suits. 17 Our analysis will not repeat those insights, but will rather focus on the importance of the Real Madrid judgment from a more constitutional point of view. In what follows, we will first discuss the Court’s considerations on the distinction between the prohibition of substantive review and the application of the public policy exception. In a second step, we will examine the tension between mutual trust and fundamental rights.
Substantive review of the foreign judgment versus effective public policy control
Central to the judgment is the interpretation of Articles 34(1) and 45 of the Brussels I Regulation, read in conjunction with Article 11 CFR. While the Brussels I Regulation has meanwhile been replaced by the Brussels Ibis Regulation, 18 said provisions have essentially remained unaltered, apart from minor changes in their numbering and formulation. The Real Madrid judgment hence remains pertinent for the interpretation of the Brussels Ibis Regulation as well.
In spite of the case’s novel subject matter – the interaction of the public policy exception with the breach of a substantive fundamental right – Real Madrid does not read like a very innovative judgment at first sight. The ECJ embeds its many considerations on the interpretation of Articles 34 and 45 of Brussels I systematically in its well-established case law on the interpretation of the Brussels I regime. 19 This allows the Court to logically conclude that 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 required under said Articles 34(1) and 45 to refuse to enforce that judgment or revoke the declaration of enforceability pertaining to that judgment. 20 When the Court thereafter makes a combined reading of Article 11 CFR and Articles 34(1) and 45 of the Brussels I Regulation, it can present this as a mere application to the specific case of that general framework. 21 As a result, the ECJ concludes, after linking the manifest breach of Article 11 CFR to the public policy exception, that the enforcement of a judgment such as the one at issue in this case ‘must be refused where it would give rise to a manifest breach of the freedom of the press, as enshrined in Article 11 CFR, and thus an infringement of public policy in the Member State in which enforcement is sought’. 22
Taking into account the Court’s earlier case law on the Brussels I regime as well as its case law on the vital importance of fundamental rights for the EU legal order, it is unsurprising that the latter plays a role where the enforcement of a judgment under EU law is concerned. Still, the Real Madrid judgment deserves particular attention, from both a private international law and a EU law perspective. While these are two very different angles from which to examine the judgment, they both allow to take a critical look at the impact of the ECJ’s interpretation on the distinction between the public policy exception and the prohibition of substantive review.
Brussels I as an instrument of private international law
For private international law purposes, the judgment is mainly of interest for the precise delimitation between the Regulation’s provisions on the public policy exception and those on the prohibition of substantive review of the foreign judgment. The Court’s insistence on a restrictive interpretation of the former matches logically with the objective of Brussels I to ensure a free circulation of judgments. In view of that purpose, Article 34(1) requires a ‘manifest’ infringement of public policy in the State of recognition or enforcement. In accordance with earlier case law, the Court precisely relies on this ‘manifest’ character of the breach of an essential legal rule to differentiate the application of the public policy exception from the prohibition of the review of the substance of the foreign judgment. 23
In a case like Real Madrid, where the alleged violation of public policy has to do with the substance of the foreign judgment rather than with procedural fairness or safeguards in the initial proceedings, 24 the distinction between the two rules might need some clarification. The invocation of the public policy exception for substantive reasons on the one hand and the prohibition of substantive review on the other, still serve very different objectives which are not to be confused.
The public policy exception intends to protect the legal order of the country of recognition or enforcement from the allegedly intolerable effects, or repercussions, 25 that would result from the integration of the foreign judgment, irrespective of whether that judgment rests on legally and factually correct findings made by the court of the Member State of origin or of any requirement that the two courts should rule (more or less) identically. It is to be used as ‘the last resort’ in exceptional circumstances only. 26 In contrast to this, a review of the substance of the foreign judgment intends to examine whether there is a discrepancy between the legal rule applied by the court of origin and that which would have been applied by the court of the Member State in which recognition or enforcement is sought, and aims to check whether the foreign judgment holds a factually and legally correct decision of the case, irrespective of its acceptability for the legal order of the latter State in terms of its most fundamental rules and principles. 27 Its prohibition therefore essentially aims at preventing the courts of recognition or enforcement from redoing the job of the courts of origin and so facilitates the circulation of their judgments.
The prohibition of substantive review essentially expresses the principle of mutual trust. 28 The courts of the EU Member States should indeed trust the other Member States’ courts to do an equally decent job (no substantive review), 29 without excluding that, due to the remaining divergences between unharmonized legal systems, the outcome of the foreign judgment can threaten fundamental principles or values of their legal order (public policy exception). 30
Therefore, the requirement of a ‘manifest’ breach, which is typically associated with the public policy exception in private international law, does not so much serve to differentiate the public policy exception from a substantive review, but is rather inspired by the typically sensitive status of the public policy exception as an ‘escape clause’ or a ‘safety valve’ as Advocate General Szpunar calls it. 31 In the framework of Brussels I, its application undermines the objective of facilitating the circulation of judgments and the international harmony which private international law traditionally pursues and must be kept to a minimum of hindrance. Hence the requirement in Article 34(1) of a ‘manifest’ contrariness to public policy.
In spite of some similarities therefore, the respective nature and objectives of the public policy exception and (the prohibition of) substantive review are very different and must not be confused. Unfortunately, however, such confusion appears to have occurred in Real Madrid. In the last part of its judgment, the Court confirms that a manifest breach of Article 11 CFR comes within public policy in the Member State of enforcement, but leaves it to the referring court to determine whether the enforcement of the Spanish judgments in this particular case would indeed give rise to such manifest breach. 32 While the Court at this stage insists on the difference between such verification and a review of the merits of the case, 33 it thereafter considers that ‘should it find that there is a manifest breach of the freedom of the press, [the referring] 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’. 34 While such partial enforcement indeed would have some practical advantages, certainly when compared to the alternative of a complete refusal of enforcement, it seems difficult to reconcile this option, in the context of the Brussels I Regulation, with the traditionally ‘binary’ understanding of Article 34(1) which provides that a judgment ‘shall not be recognised’ in case of manifest contrariness to public policy. 35 In itself, a partial enforcement would not entail a review of the substance of the foreign judgment, as it is only meant to remedy insofar as strictly necessary that judgment’s incompatibility with the fundamental principles of the legal order of the State of enforcement. Still, a reduction of the damages awarded inevitably implies a renewed examination of the case and an assessment of what damages must, in the given case, be considered proportionate. How to determine the proportionality of damages without reviewing the merits of the case, and hence overstepping the limits of what a true public policy control would require? 36
Brussels I as an instrument of EU law
Although the Brussels I Regulation contains many traditional private international rules, the references to the principle of mutual trust, both in the Regulation’s preamble 37 and in the ECJ’s interpretative judgments, 38 equally signal the specific EU character of the Brussels I regime. As the Brussels I Regulation is a private international law instrument of the EU, it must be characterized first and foremost as a piece of EU law on international procedure, serving Union policies, rather than legislation on international procedural law for the EU Member States. 39 As will be explained hereafter, this specific EU law perspective involves the search for the appropriate balance between mutual trust and fundamental rights protection, which affects the traditional distinction between the public policy exception and the prohibition of substantive review.
Article 34(1), the Regulation’s public policy clause, refers to ‘public policy in the Member State in which recognition is sought’. In the first part of Real Madrid, the ECJ explicitly interprets this provision in a purely ‘national’ sense, as it considers that ‘Member States remain in principle free, by virtue of the proviso in that provision, to determine, according to their own national law and practices, what the requirements of their public policy are’ and that ‘it is not for the Court to define the content of the public policy of a Member State’. 40 Still, the very precise definition of public policy that the ECJ subsequently gives in the crucial paragraph 67 of Real Madrid, where it considers that ‘a manifest breach of Article 11 CFR comes within public policy in the Member State in which enforcement is sought’, holds an unambiguously ‘European’ definition of the public policy exception. The choice for such ‘European’ interpretation, which aligns with the approach which the ECJ developed earlier, inter alia in Diageo Brands 41 and Charles Taylor Adjusting 42 , deserves full support. Although national courts still often tend to follow a mainly national interpretation of the public policy exception, it can and must be relied upon to protect essential EU rules as well. 43
This specific EU character of the Brussels I recognition and enforcement regime, as it is expressed in this ‘European’ content of the public policy exception, specifically comes to the fore where the impact of fundamental rights, and the Charter more particularly, and its interaction with mutual trust is concerned. In view of Article 51(1) CFR, the application and interpretation of the Brussels I Regulation must comply with the requirements flowing from the fundamental rights enshrined in the Charter. 44 Yet, as the principle of mutual trust in principle prohibits Member States from checking whether another Member State has in a specific case observed the fundamental rights guaranteed by the EU, the ECJ nevertheless considers that only the enforcement of a judgment which would give rise to ‘a manifest breach of a fundamental right as enshrined in the Charter’ must be refused because of infringement of public policy as laid down in Articles 34(1) and 45 of the Brussels I Regulation. At the same time, it is noteworthy that the ECJ emphasizes the obligatory non-enforcement of the foreign judgment in those circumstances (‘required…to refuse to enforce’). While such obligation flows from the wording of Article 34(1) – ‘shall not be recognised’ – the ECJ specifically highlights this requirement through its explicit reference to the emphasis on such obligation in paragraph 189 of the AG’s Opinion.
In spite of the ECJ’s insistence on the Member States’ obligations as regards the very application of the public policy exception, the impact of the principle of mutual trust is such that another Member State’s judgment which violates a fundamental right, even when it is enshrined in the Charter, in principle will have to be recognized and enforced and hence be given full legal effect in all other Member States. This will be different only where this would give rise to ‘a manifest breach’ of that fundamental right.
Such is the price to be paid, in an individual case, for the strengthening of the EU legal order more generally through the principle of mutual trust. Permanent mistrust between the Member States would indeed weaken the Union’s area of freedom, security and justice, or even result in its fragmentation. 45 Still, one cannot avoid the rather annoying conclusion that, in spite of the steadily increasing awareness of the pertinence of fundamental rights for private (international) law and their key position in the EU legal order, the Europeanization of the recognition and enforcement regime does not really strengthen fundamental rights protection in this area.
A partial remedy for this paradox may be found in clarification and search for the most precise delimitation between the outer limits of mutual trust on the one hand and the true, unassailable core of fundamental rights protection on the other hand. Hence the need for a definition that is as clear as possible of ‘manifest’ and therefore unacceptable violations of public policy, at least where fundamental rights are concerned.
These concerns may explain why the ECJ in Real Madrid goes at great lengths to explain the correct understanding of Article 11 CFR, referring abundantly to its own case law and that of the ECtHR. 46 As regards this particular case, it clarifies that the pertinent criterion consists in a manifest disproportionality between the damages awarded and the reputational harm caused which would thus risk having a deterrent effect on future media coverage of similar matters or on the exercise of the freedom of the press. It must therefore not be deduced from just any discrepancy between the amount of damages awarded in different Member States. 47
Here, the ECJ is once more confronted with the thin line between an interpretation of the public policy exception that is as clear and as instructive as possible for the referring court, also where substantive fundamental rights are concerned, on the one hand, and the prohibition of substantive review by the latter court on the other. As mentioned before, the ECJ appears to cross this line at the very end of the judgment, in order to protect the freedom of expression, and so signals its prioritization of respect for fundamental rights, to be implemented through mutual ‘horizontal’ control by the Member State courts. 48 While the very existence of the public policy exception has been relied upon to confirm that mutual recognition of judgments is not irreconcilable with fundamental rights protection, 49 one wonders whether, in view of the Charter’s inevitable applicability on basis of its Article 51(1) and the enduring vagueness of the public policy exception’s interpretation, the latter does not constitute an unnecessarily complicated mechanism to integrate respect for fundamental rights in the intra-Union recognition and enforcement regime. It is noteworthy in that respect that the ECJ apparently chose not to proceed fully ‘by the book’ where the interpretation of the public policy exception and its interaction with the prohibition of substantive review were concerned in Real Madrid, but rather inserted some more flexibility in the Brussels I Regulation’s standard rules.
Even apart from the particular context of the Real Madrid case, it cannot be excluded that finding a convincing balance between mutual trust, circulation of judgments and ensured fundamental rights protection will eventually, within precise limits, require the altering of the traditional differentiation between the public policy exception and the prohibition of substantive review or at least require a different, i.e., no longer ‘binary’ understanding of the former. 50 It would further contribute to the specific ‘European’ character of the Brussels I(bis) Regulation’s recognition and enforcement regime.
A constant tension between mutual trust and fundamental rights
After assessing the judgment’s contribution to the interpretation of the Brussels I Regulation in light of private international law and EU law, this section explores the broader tension between mutual trust and fundamental rights in EU judicial cooperation. To reiterate, in Real Madrid the Court held that Article 11 CFR may justify recourse to the public policy exception in case it is manifestly breached. In this respect, the judgment fits within an evolving body of case law on exceptions to mutual trust in judicial cooperation, driven by fundamental-rights-related considerations.
Direct horizontal relationships between national courts in judicial cooperation in civil and criminal matters are underpinned by the principle of mutual recognition, which is based on mutual trust. 51 Mutual trust is rooted in the premise that all Member States respect a core of common values on which the Union is founded, reflected in Article 2 TEU which includes, inter alia, the rule of law and respect for human rights. 52 The duty to respect mutual trust requires Member States to presume the compatibility of different national legal solutions with EU law and with the fundamental rights recognized within it, 53 preventing double control of these legal solutions’ compliance with Union law. 54
While judicial cooperation instruments in civil and criminal matters contain express limitations to the application of mutual trust, 55 the ECJ has introduced additional exceptions through its case law. Over the last decade, the Court clarified that mutual trust can and should not be equated with blind trust, balancing the application of the principle with fundamental rights concerns. 56 In what follows, we will sketch the broader development that one can see take place in the Court’s case law and discuss the way in which Real Madrid fits within this development, without, however, giving an exhaustive and detailed overview of all earlier cases.
Judicial cooperation in criminal matters
The development of new, fundamental-rights-inspired exceptions first emerged in the context of Council Framework Decision 2002/584 on the European Arrest Warrant (‘FD EAW’). 57 The Court’s initial formalistic understanding of mutual trust evolved to allow refusal of an EAW even where the FD EAW did not explicitly provide for such an exception. 58 In the 2016 Aranyosi and Căldăraru judgment, the Court interpreted the obligation of Member States under Article 1(3) FD EAW to respect fundamental rights as preventing surrender if there is evidence of systemic or widespread deficiencies in a Member State’s detention conditions, and if the individual concerned faces a specific risk of inhuman or degrading treatment under Article 4 CFR. 59 This case established a cumulative two-step test, requiring both systemic deficiencies in the country of origin of the EAW and an individual risk under Article 4 CFR. Given the absolute nature of Article 4 CFR, 60 the Court transformed this provision into a ‘safety valve’ capable of overriding mutual trust. 61
The two-step test was soon expanded to include other fundamental rights. In the EAW system, it became evident that the quality of the rule of law in a Member State significantly impacts the protection of fundamental rights across others. 62 In the 2018 LM judgment, the ECJ applied the two-step test to ascertain whether there is a real risk of breaching the right to a fair trial under Article 47(2) CFR. 63 This expanded the exceptions to mutual trust to include situations where the judicial authorities of the country of origin no longer meet the requirements of effective judicial protection, including guarantees of judicial independence. 64 Several judgments following LM reiterated that doubts about the right to a fair trial by an independent court properly established by law could justify not executing the EAW. 65
In its 2023 judgment in E.D.L., the ECJ ruled that Articles 1(3) and 23(4) FD EAW, in conjunction with Article 4 CFR, allow postponing or refusing surrender under the EAW where an individual has a serious chronic illness which risks deterioration, and lacks adequate medical guarantees in the country of origin. 66 Since the Court bypassed the systemic deficiency step of the two-step test, some scholars interpreted E.D.L. as an attempt to broaden exceptions to mutual trust, moving from the two-step test to a ‘reasoned risk-based test’. 67 However, given the ECJ’s reliance on the humanitarian clause under Article 23(4) FD EAW, and the fact that the individual’s health risk existed regardless of the institutional safeguards provided by the country of origin, other scholars interpreted this case as a one-off exception to the two-step test. 68
In GN, shortly after E.D.L., the ECJ confirmed the two-step test’s relevance to refuse the surrender of an individual under Article 1(3) FD EAW. 69 The Court ruled that the test may also be applied to Article 7 CFR on the right to private and family life, and Article 24(2)–(3) CFR on the protection of the best interests of the child. 70 This case clarified that other provisions beyond Articles 4 and 47 CFR may be operationalized through the two-step test, suggesting that the principle of mutual trust in the EAW system may at this point be rebutted based on a breach of any fundamental right, whether absolute or not.
The application of the two-step test elaborated first in the EAW system was also applied to other instruments of judicial cooperation in criminal matters. In 2023, in Staatsanwaltschaft Aachen, the ECJ extended the two-step test to the mechanism of judicial cooperation allowing for intra-EU transfer of prisoners. This demonstrated that the test is also relevant in the context of proceedings on the enforcement of custodial sanctions under Council Framework Decision 2008/909, 71 at least insofar as the right to a fair trial is at stake. 72
Judicial cooperation in civil matters
Similar questions on whether fundamental-rights-based concerns may create an exception to the principle of mutual trust have also arisen in judicial cooperation in civil matters. The main contribution of the Court in this field revolves around the Brussels I Regulation, which, given its role as the ‘matrix of civil judicial cooperation in the EU’, 73 offers an illustrative example. As mentioned earlier, most cases concerned procedural rights. For example, in 2000, in Krombach the ECJ held that the public policy clause in the (current) Article 45 Brussels Ibis Regulation allows refusing enforcement of a foreign judgment if it manifestly breached the defendant’s right to defend themselves, which is a fundamental aspect of the right to a fair trial. 74 In the 2012 Trade Agency judgment, the Court confirmed that a manifest and disproportionate breach of the right to a reasoned judgment, as part of the right to a fair trial under Article 47(2) CFR, could equally trigger the public policy clause under the Brussels I Regulation. 75
The limits of the public policy clause were also tested under the Brussels IIbis Regulation, 76 (later replaced by the Brussels IIter Regulation). 77 For example, in 2010 in Aguirre Zarraga the ECJ ruled that public policy may not be invoked to oppose enforcement of a certified judgment ordering the return of a child, even where a fundamental rights violation is at stake. 78 In 2015, in P v. Q, the Court clarified that misapplication of jurisdiction rules alone does not justify refusal of recognition through public policy. 79 Since the Brussels II Regulation excludes the application of public policy for return orders and jurisdiction rules, 80 these cases simply confirmed the Court’s strict and exceptional application of the public policy clause.
Two more judgments concerning, respectively, the Brussels I Regulation and the European Enforcement Order (‘EEO’) Regulation 81 clarified that, beyond public policy, other provisions within these instruments may equally serve to protect fundamental rights. In its 2017 Pula Parking judgment, the Court ruled that mutual trust requires that judgments recognized or enforced under the Brussels I Regulation must be delivered in court proceedings ensuring independence, impartiality and compliance with the principle of audi alteram partem. 82 This wording was reiterated by the ECJ to define the notion of ‘court’ in the EEO Regulation in Ibrica Zulfikarpašić, 83 demonstrating that the interpretation of the Court delivered in the context of the Brussels I scheme may also extend to other instruments of judicial cooperation in civil matters. Though not driven by fundamental rights concerns, the definitions in Pula Parking and Ibrica Zulfikarpašić align with the Court’s interpretation of ‘court’ under Article 47(2) CFR in related judicial cooperation cases. 84 The Real Madrid judgment follows the line of those previous judgments, but adds another step, maybe the most significant one as of yet. With its broad wording, the Court indicated that any fundamental right, whether procedural or substantive, potentially overrides the presumption of mutual trust, provided that there is a manifest breach of said right. This closely resembles the evolution seen in the EAW system, with the GN judgment as the current final step.
Judicial cooperation as a tool for enforcing EU values
Over the past decade, the ECJ has gradually accepted, at the request of domestic courts, fundamental rights-based exceptions to the application of the principle of mutual trust. As shown above, this case law has steadily expanded, both in terms of which fundamental rights can be relied upon and to which instruments of secondary legislation it is applied. It is probably no coincidence that this line of case law began to develop amid the Union’s ‘crisis of values’ and the continuously growing importance of fundamental rights protection in the EU’s constitutional edifice. Nowhere has this become clearer than in the area of rule of law backsliding, together with its impact on fundamental rights and, more specifically, on the right to an independent tribunal established by law. In such circumstances, a rigid application of the principle of mutual trust in the absence of the guarantees that underpin it would both frustrate individual rights, and allow for the spread of unsatisfactory solutions across the EU. 85 Mindful of this danger, domestic judges have increasingly sought guidance from the ECJ on balancing their obligations under mutual trust, with those stemming from fundamental rights. 86
These developments have given rise to a cross-cutting body of case law on EU judicial cooperation which broadens the number of exceptions to mutual trust to accommodate sufficient safeguards for fundamental rights. These cases outsource the task of ensuring that Member States uphold fundamental rights from EU institutions to domestic courts which, by leveraging secondary law provisions on judicial cooperation, can challenge fundamental rights violations in other Member States. As a result, secondary legislation within the AFSJ has become a tool for invoking and enforcing the Union’s values horizontally, placing national courts at the helm of this bottom-up approach. 87
Meanwhile, an increasingly coherent system of limits to blind mutual trust seems to be emerging from the Court’s case law, generating significant scholarly interest in whether these exceptions, emerging both in civil and criminal judicial cooperation, affect each other and other types of cooperation within the AFSJ. 88 For example, in 2022 in Sped-Pro, the General Court ruled that if the right to a fair trial is at risk, the European Commission shall also perform the two-step test before rejecting an individual complaint under Regulations 1/2003 89 and 773/2004 90 on account that a national competition authority is best placed to examine it. 91 The test comprises an assessment of whether there are systemic deficiencies compromising the independence of national competition authorities and national courts, as well as whether, if the Commission rejects responsibility for handling the complaint, the individual faces a real risk of infringement of his right to a fair trial under Article 47 CFR. 92
The ECJ’s reference in Real Madrid to a paragraph of Opinion 2/13, 93 where the Court had cited two rulings from judicial cooperation in criminal matters and asylum cooperation, could signal an implicit transfer of its case law on mutual trust limits across different EU law areas. 94 After all, the extension of the two-step test, originally developed for the EAW, to other instruments of EU judicial cooperation in criminal matters and even other legal domains of EU law, such as the European Competition Network, suggests an emerging convergence in the Court’s case law to protect fundamental rights. The absence of a distinction between absolute and non-absolute fundamental rights for the two-step test under the EAW system confirmed in GN, or between procedural and substantive rights to invoke public policy as established in Real Madrid, also potentially reflects an effort to equalize the impact of different fundamental rights on mutual trust.
Such horizontal enforcement may prove a surprisingly effective new tool in the EU’s toolbox for value enforcement, both for civil and criminal matters. At first glance, these instruments of secondary legislation offer further ‘hooks’ for horizontal enforcement that have as of yet not been applied. For example, after Real Madrid and similar to the abovementioned case of Pula Parking, domestic judges could consider refusing to execute a civil judgment based on the public policy exception – whether in the Brussels I Regulation or any other instrument that includes such clause – when the court of origin presents serious rule of law concerns relating to its status as an independent court established by law. In this sense, the Court’s extensive case law on the guarantees of independence and impartiality delivered in the area of EU constitutional law could inform the application (and limitations) of judicial cooperation instruments. 95
It thus seems likely that similar cases will continue to emerge, further clarifying the role of exceptions in various instruments of secondary legislation on judicial cooperation. 96 Existing scholarship already highlights the importance of national court organization for successful cross-border debt enforcement, 97 suggesting that issues central to fundamental rights and the rule of law, such as judicial independence and impartiality, will become increasingly significant in shaping the future of EU judicial cooperation in this area.
This evolving landscape of case law in EU judicial cooperation raises new questions about the precise boundaries and opportunities for national judges to capitalize on secondary legislation in judicial cooperation for the sake of this type of horizontal enforcement. These questions will need to focus on how national courts can safeguard their domestic legal systems from the spread of judgments violating fundamental rights or the rule of law, and how judges may enforce fundamental rights or other Union values vis-à-vis other Member States, all while working within a legal system that is predicated on the principle of mutual trust.
Conclusions
The Real Madrid judgment is very rich. It touches upon central concepts such as the freedom of the press, the public policy exception, mutual trust and the effective protection of fundamental rights. This case note has mainly discussed the judgment from a constitutional point of view. It first analysed the Court’s considerations on the distinction between the prohibition of substantive review and the application of the public policy exception. It highlighted the somewhat peculiar position of the Brussels I Regulation, as an instrument of both private international law and EU law, in this respect, and showed that the Court seemingly also struggled in keeping the two concepts clearly separated. Secondly, this case note placed the Real Madrid judgment within a broader strand of case law that has been developing for almost a decade and which is increasingly allowing for exceptions to the principle of mutual trust because of fundamental-rights-based concerns. This evolving strand of case law shows the important position that national courts can take in enforcing EU values in other Member States. Future scholarship may focus on further conceptually developing this horizontal form of enforcement as a new and potentially important tool in the EU’s system of value enforcement.
Footnotes
Declaration of conflicting interests
The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The authors disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: This work was supported by the Research Foundation – Flanders (FWO) (grant number G005324N).
