Freedom of the Press as a Public Policy Reason Restricting the Principle of Mutual Trust: Lessons from the Real Madrid Preliminary Ruling

Abstract: In the Real Madrid case, the Court prioritized under the public policy proviso of the Brussels I Regulation the protection of freedom of the press over the mutual recognition of judgments in civil and commercial matters. The preliminary ruling explains the circumstances in which recourse to public policy is possible to decline the enforcement of a foreign judgment ordering damages for harm done to reputation as a result of publication of information on a matter of public interest. The criteria that it employs in this respect are however difficult to reconcile with the obligation imposed by the Brussels I Regulation not to review the substance of the foreign judgment. At the same time, this case underlines the complementarity of the legal protection that has been made now available to persons engaged in public participation under the public policy clause and the new Anti-SLAPP Directive in the member state of origin and the member state of enforcement of the judgment. Looking beyond freedom of expression, an important question is whether this case could have a spillover effect in other areas characterized by the application of legal instruments based on the principle of mutual trust and in particular whether it could introduce an exception to the operation of this principle whenever there can be ascertained a manifest risk of breach of a fundamental right regardless of the existence of systemic deficiencies in the general level of protection of that right in the member state concerned.

Keywords: Freedom of the press – mutual trust – public policy – Brussels I Regulation – Anti-SLAPP Directive – art. 11 Charter.

I.   Introduction

May a national court refuse the enforcement of a judgment issued by a court of another member state on the ground that such an enforcement would be manifestly contrary to the public policy of the member state in which this judgment is to be executed, because the amount of damages that it awards to 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 is such that is liable to give rise to a manifest breach of the freedom of the press as protected under the Charter of Fundamental Rights of the European Union? That was the essence of the preliminary reference in the Real Madrid case.[1] This case provided the Court the opportunity to clarify the circumstances in which art. 11 of the Charter can be relied upon as a legitimate public policy ground justifying an exception to the mutual recognition and enforcement of judgments under the Brussels I Regulation.[2]

The Brussels I Regulation constitutes the main instrument in the area of judicial cooperation in civil matters and its operation is based on the core principle of mutual trust. Although not explicitly embedded in the Treaties, this principle has been afforded constitutional status by the case law of the Court.[3]  The latter has underlined on many occasions its cardinal importance, noting that it allows an area without internal borders to be created and maintained.[4]  As it has been recently confirmed, mutual trust between the member states is based on the fundamental premiss that they share the common values of the European Union which are an integral part of its very identity.[5]  Since these values include the respect for human rights, member states are presumed to protect these rights to the level required by the legal order of the Union and to provide in each and every case an equivalent protection to individuals even if their national legal systems are not exactly identical.[6] As a consequence, it is only in very exceptional cases that a member state may contest this presumption and refuse the recognition and enforcement of a measure adopted by the national authorities of another member state in an area based on mutual trust.

The preliminary ruling in Real Madrid is interesting from a multiple perspective, not least because it comes only a few months after the adoption of legislation at European Union level aimed at protecting media freedom and safeguarding the persons who engage in public participation from abusive court proceedings.[7] There are four issues that merit closer analysis. The first is whether the reliance on a fundamental right as a public policy exception can only be made by reference to the standard of protection of that right under the Charter, to the exclusion of more protective national requirements. The second is whether the preliminary ruling amounts to an implicit authorization of the national courts of the member state in which enforcement is sought to review to some extent the substantive assessments of the foreign judgment, although this is completely prohibited under the Brussels I Regulation. Another important question concerns the interaction of the preliminary ruling with the legislative rules that have been recently adopted in relation to lawsuits that seek to supress communications on matters of public interest and the complementarity of the protection that seems now to have been introduced in this area for persons involved in public participation. A final issue is whether the preliminary ruling is likely to affect the application of the core principle of mutual trust even beyond the area of judicial cooperation in civil matters and to introduce an exception to its operation whenever there can be ascertained a manifest risk of breach of a fundamental right, regardless of the existence of systemic deficiencies in the general level of protection of that right in the member state concerned.

All of the above will now be examined in turn after providing some necessary information about the legal and factual background of the case and the preliminary ruling of the Court.

II.  Factual and legal background

The dispute arose following the publication by the French newspaper Le Monde of an article alleging that the Spanish football club Real Madrid had retained the services of the head of a doping ring in the cycling world. Both Real Madrid and a member of its medical team instituted proceedings before the Spanish courts against the newspaper company and the author of the article, claiming damages for the harm done to their reputation. The defendants were eventually ordered to pay 300 000 euros to the football club and 30 000 euros to the member of its medical team.

However, the French courts relied on art. 34(1) of the Brussels I Regulation and refused to enforce that judgment on the ground that it was manifestly contrary to French public policy.[8] They argued in essence that the penalties imposed interfered to an unacceptable extent with freedom of expression, because the amount of the damages was such that had a deterrent effect on the involvement of the defendants in the public discussion of matters of community interest and curtailed therefore the ability of the media to perform its information and monitoring role. The claimants contested that decision, arguing inter alia that it amounted to a substantive review of the foreign judgment contrary to the provisions of the Brussels I Regulation.[9]

Uncertain as to the obligations imposed by the provisions of the Brussels I Regulation and the right to freedom of expression under the Charter, the competent national court stayed the proceedings and made a preliminary reference on this issue.

III. The preliminary ruling of the Court of justice

The preliminary ruling starts by reiterating that the Brussels I Regulation is based on mutual trust in the administration of justice in the European Union and that it circumscribes therefore the possibility of refusing a declaration of enforceability of a judgment given in another member state to one of the grounds set out in its provisions.[10] It recalls then that the public policy proviso contained in art. 34(1) of the Brussels I Regulation constitutes an obstacle to the attainment of one of its fundamental objectives and should be interpreted strictly. Although the member states remain in principle free to determine the requirements of their public policy according to their own national rules and practices, it is nonetheless for the Court to review the limits within which national courts may have recourse to that concept for the purpose of refusing the recognition of a judgment emanating from another member state.[11]

Given that the Brussels I Regulation prohibits any review of the substance of the judgment of another member state, recourse to the public policy exception can be envisaged only when the enforcement of the foreign judgment would constitute a manifest breach of a rule of law regarded as essential in the legal order of the member state in which the enforcement is sought or of a right recognized as being fundamental within that legal order.[12] The same is the case when the error concerns a rule of European Union law. Thus, the public policy clause would apply only where the enforcement of the judgment would result in a manifest breach of a rule of law regarded as essential in the European Union legal order or of a right which is recognized as being fundamental within that legal order and therefore in the legal order of the member state of enforcement. This holds particularly true for fundamental rights recognized at European Union level. Therefore, it is only if the enforcement of a judgment in the member state in which this enforcement is sought would amount to a manifest breach of a fundamental right as protected under the Charter that a court of that member state may exceptionally deviate from the application of the principle of mutual trust and have recourse to the public policy proviso of the Brussels I Regulation to refuse the execution of that judgement.[13]

The preliminary ruling turns then to art. 11 of the Charter and to the right to freedom of expression, which also includes the right to freedom and pluralism of the media. It recalls that this is not an absolute right and that it is possible to impose limitations on its exercise. It underlines though the importance of that right, to the extent that freedom of expression constitutes one of the essential foundations of a pluralist and democratic society and is one of the art. 2 TEU values on which the Union is founded. Consequently, interferences with the rights and freedoms protected by art. 11 of the Charter must be limited to what is strictly necessary. This is especially the case for interferences concerning journalists and also publishers and press organizations, in view of the importance of the press in a democratic society governed by the rule of law.[14]

Since art. 11 of the Charter corresponds in essence to art. 10 of the European Convention on Human Rights, the preliminary ruling underlines the obligation to take account in its interpretation of the relevant case law of the European Court of Human Rights.[15] Referring then extensively to that case law, it stresses that this leaves little scope for restrictions on freedom of expression in the fields of political speech and matters of public interest.[16] Although the press must not overstep certain bounds as regards in particular the reputation and rights of others, its duty is nevertheless to impart information and ideas on all matters of public interest. Thus, considerable weight must be attached to the interest of a democratic society in ensuring and maintaining a free press in the determination of whether the interference in question is proportionate to the legitimate aim pursued.[17] Although the parties injured by defamatory statements should have the possibility of seeking damages such as to constitute an effective remedy for harm to their reputation, any judgment awarding damages must comprise a reasonable relationship of proportionality between the amount awarded and the harm in question.[18] Large damages awards that are 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.[19]

Turning then specifically to the case referred for a preliminary ruling, the Court concludes that the enforcement of a judgment ordering a newspaper company and one of its journalists to pay damages for harm to the reputation of the claimants caused by the publication in that newspaper of information about them must be refused under the public policy proviso of the Brussels I Regulation when it is liable to give rise to a manifest breach of the rights and freedoms as enshrined in art. 11 of the Charter.[20] The referring national court must ascertain therefore whether the damages awarded in the case at hand are manifestly disproportionate to the reputational harm suffered by the claimants and thus risk having a deterrent effect on future media coverage of similar matters in the member state in which the enforcement is sought and more generally on the exercise of the freedom of the press as protected under art. 11 of the Charter.[21] In order to make this determination,  it must take into consideration not only the resources of the persons against whom the judgment is given but also the seriousness of their wrong and the extent of the harm as found in the judgment at issue.[22] It cannot review the substantive assessments carried out by the national court in the member state of origin, as this is expressly prohibited by the Brussels I Regulation.[23] If it arrives to the conclusion that there is a manifest beach of the freedom of the press, that court should limit the refusal to enforce to the manifestly disproportionate portion of the damages awarded.[24].

IV. A manifest violation of Charter rights: towards an EU concept of public policy?

The introduction of a public policy exception in legal instruments adopted in the area of judicial cooperation in civil matters and based on the principle of mutual trust purports to authorize national courts to refuse the automatic recognition of legal outcomes that would run counter to the basic interests and values of their national legal order.[25] Just like its operation under private international law, public policy intends therefore to serve as a type of safety valve in those exceptional circumstances where a national court would otherize be obliged to choose between violating a mutual recognition obligation stemming from a legal instrument adopted by the Union legislature and giving effect to that obligation in a way that would infringe a fundamental value of its national legal system.

That the public policy proviso of the Brussels I Regulation could be relied upon also in cases where the clash would involve a fundamental right protected by the European Union legal order had been made apparent ever since the preliminary ruling in Krombach.[26] In that event, reference was made to the common constitutional traditions of the member states to conclude that the right to be effectively defended by a lawyer occupies a prominent position in the organization and conduct of a fair trial and that it is therefore possible to rely on public policy in order to refuse the recognition and enforcement of a judgment adopted without the person concerned being allowed to have his case presented unless he appeared in person.[27] Later on, a similar reasoning was employed in the preliminary ruling in Gambazzi.[28] This case involved the exclusion of the defendant from the proceedings before the court of the member state of origin because of failure to comply with a court order. The referring national court was instructed there that it could have recourse to the public policy clause if the exclusion measure manifestly and disproportionately infringed the right of the defendant to be heard.[29]

Following the recognition of the binding force of the Charter, an explicit reference to its provisions was made in the Trade Agency case.[30] It was concluded there that a national court may rely on the public policy exception and refuse the enforcement of a judgment given in default of appearance, where that judgment constitutes a manifest and disproportionate breach of the right to a fair trial.[31] Real Madrid constitutes therefore a further occasion that a national court seeks to rely on public policy by reference to a fundamental right, the novelty being that this time the right concerned is of a substantive rather than of a procedural nature. It is also interesting that the language used in this preliminary ruling is more categorical compared to previous case law, in so far as it essentially concludes that the enforcing national court must refuse under the public policy proviso the recognition and execution of a judgment that gives rise to a manifest breach of the freedom of the press as enshrined in the Charter. That seems to insinuate that the national courts of the member state of enforcement are actually required and not merely empowered to invoke the public policy exception, when the execution of the judgment would amount to a patent breach of the Charter requirements.

Hence, the inference seems to be that the application of the Charter prohibits any interpretation of the public policy proviso in a manner that would reduce the level of fundamental rights protection available under Union law.  However, the question that has not been explicitly addressed thus far by the relevant case law is whether recourse to the public policy exception on the basis of fundamental rights considerations is possible even when this intends to make available a more extensive level of protection of the right concerned in the enforcing member state compared to the one provided under the Charter.[32] Real Madrid contains in this respect statements that leave ample room for interpretation. On the one hand, it confirms that it is in principle for the member states to determine the requirements of their public policy according to their national laws and practices suggesting therefore that it is acceptable to refer to more inclusive national standards of fundamental rights protection.[33] At the same time, it reiterates the obligations stemming from the principle of mutual trust and emphatically confirms that in the application of the Brussels I Regulation national courts are obliged to comply with the requirements flowing from the fundamental rights enshrined in the Charter.[34] This seems to indicate that the concept of public policy in the area of fundamental rights has been made subject to uniform requirements and must correspond accordingly exclusively to the standards of protection introduced by the Charter.

The argument that it is permissible to use more encompassing national standards of fundamental rights protection under the concept of public policy can be made by reference to the preliminary ruling in Omega.[35] That case concerned a prohibition imposed by the competent national authorities on the commercial exploitation of laser gun games on the rationale that it violated human dignity, as protected under the German Constitution. The Court ruled that this imposed a restriction on the free movement of services but concluded eventually that it could be justified on the basis of the public policy exception of the Treaty. Referring specifically to the fact that the level of protection afforded to human dignity under the German Constitution was higher than in the other member states, the Court stressed that it was not indispensable for the restrictive measure to correspond to a conception shared by all member states as regards the precise way in which the fundamental right in question would be protected.[36] This approach on public policy was confirmed later on in cases involving national legislation prohibiting the use of titles of nobility and noble elements by the nationals of the member states concerned.[37] It was repeated there that the specific circumstances that could justify recourse to the concept of public policy could vary from one member state to another. Accordingly, it was necessary to allow the competent national authorities a certain margin of appreciation within the limits imposed by the Treaty.[38]

However, it has been clarified on several occasions that in the implementation of their obligations under the provisions of European Union law member states are not allowed to require a higher level of protection of fundamental rights than that provided by the Charter.[39] As a result, national authorities are not allowed to refuse the execution of a measure that has been validly adopted by the competent authorities of another member state under a legal instrument based on mutual trust by relying on a standard of protection of fundamental rights that is higher than that derived from the Charter.[40] One can logically expect therefore that this also holds true as regards reliance on fundamental rights considerations in the context of the public policy proviso under the Brussels I Regulation.[41] So long as a judgment does not manifestly fall foul of the Charter requirements, reliance on public policy will not be available for the national court in the member state of enforcement. Hence, the standard of public policy in the area is set by the Charter as interpreted in the light of relevant case law under the European Convention on Human Rights.[42]

According to this interpretation, public policy in the area of judicial cooperation in civil matters does no longer refer only to the national public policy of the member states as the situation originally was. When the alleged violation concerns rules and rights which are considered essential under the Union legal order, the reference is rather made to the collective public policy of the European Union.[43] This is transplanted in the national legal orders and produces an essentially preemptive effect that precludes reliance on national requirements that would deviate from its content. This public policy comprises not only of Charter rights but also of legal rules and principles that are considered as fundamental in the European Union legal order, such as for example the principle of mutual trust itself and the legal requirements stemming from its application.[44] It does not nevertheless extend automatically to any provision relating to primary European Union law, such as for example to all the legal rules serving the operation of the internal market.[45] The application of this public policy under the Brussels I Regulation means that the national court in the member state of enforcement is not merely authorized but is rather obliged to refuse the recognition and execution of any judgment that manifestly violates its requirements.

V.  Proportionality review under freedom of the press: a disguised review as to the substance of the case?

As already noted, the Real Madrid case involves a substantive fundamental right and not a procedural error relating to the various components and safeguards of the right to a fair trial as previous cases under the public policy proviso. It is nevertheless apparent from the preliminary ruling that this poses considerable challenges as regards the observance of the obligation of the enforcing national court not to review the foreign judgment as to its substance.[46] That is because in cases involving the award of damages for harm done to reputation as a result of publication of information, it is ultimately necessary to examine the proportionality of the amount awarded in order to conclude whether this constitutes an excessive restriction of the freedom of the press that is liable to have a chilling effect on the ability of the media to perform its information and monitoring role.[47] But in order to make such a proportionality assessment that may eventually allow recourse to public policy, it is necessary to carry out a comprehensive review and to perform a balancing exercise of competing legal rights and interests.

Real Madrid attempts to apply in this respect the classic formula, according to which there is a clear division of competences between the issuing national court and the court of the member state in which enforcement is sought. The former is responsible for making all the substantive assessments of law and fact and for concluding whether the violation complained of has indeed been committed. Furthermore, it is its responsibility to determine the amount of the damages to be awarded taking into account both the extent of the harm suffered and the seriousness of the offense committed. The enforcing national court on its part cannot question the existence of the violation and the accuracy of the findings of law and fact made by the court of the member state of origin, in order to contest the amount of those damages. It is nevertheless obliged to examine whether the enforcement of the judgment in the specific circumstances of the case would amount to a manifest infringement of the freedom of the press and whether the damages awarded are so manifestly disproportionate to the reputational harm in question that risk having a deterrent effect on the imparting of information on matters of public interest.[48]

But this is precisely where the examination that the enforcing national court is instructed to carry out starts looking like a prohibited review of the substance.[49] That court is called upon to take account of all of the circumstances of the case. It must examine the resources of the persons concerned, the seriousness of their wrong and the extent of the harm done by them.[50] It is certainly true that in considering the severity of the offense and the measure of the harm inflicted on the claimants it is required to base its assessment on the relevant findings of the issuing court. That means that if this latter court considers that a statement has been particularly prejudicial for the claimants and made in bad faith, this is a conclusion that cannot be contested by the enforcing national court. But still, this cannot conceal the reality that this court may question the proportionality of the sanction imposed by looking at exactly the same criteria that the issuing court has employed in order to perform its substantive review of the case. And not only that, but it may complement its proportionality review by referring also to any additional sanctions that have been imposed on the persons concerned by the issuing court.[51] In other words, the enforcing national court may contest in the context of its proportionality assessment the balancing of the rights already made by its counterpart in the member state of origin and conclude that one of those rights should have received closer attention in view of the circumstances of the case.

Furthermore, the enforcing national court may take into consideration the amounts awarded for similar harm in the member state of enforcement.[52] One could certainly maintain that this does not in any way question the quality of the judgment of the issuing court, since this examination simply adds to the equation the situation in another national jurisdiction. It is not therefore something that should be excluded in order to protect the division of competences between national courts under the Brussels I Regulation and to respect the principle of mutual trust. However, the mere fact that such an assessment can be performed in order to establish the existence of a manifest breach and to allow recourse to the public policy proviso is actually close to carrying out a new review of the case having regard this time also to the legal reality in the member state of enforcement.

As if all of the above would not suffice in themselves to entertain reasonable doubts about the observance of the obligation not to review the substance of the foreign judgment, Real Madrid contains one more surprising element in case the national court in the member state of enforcement concludes that the execution of that judgment would constitute a manifest breach of the freedom of the press. In such an event, it is obliged to limit its refusal to enforce solely to the manifestly disproportionate portion of the damages awarded.[53] Apparently, the aim of this obligation is to reduce the interference that the successful reliance on public policy produces for both the foreign judgment and the principle of mutual trust in the area of judicial cooperation in civil matters. Rather unexpectedly though, it seems to have the exact opposite practical effect. That is because the executing national court is authorized access to the operative part of the foreign judgment and is allowed to reconstruct it by carrying out a substantive assessment as to the parts which do not give rise to any manifest fundamental rights concerns and which may therefore be executed as opposed to those that are liable to have a chilling effect on the exercise of freedom of the press.[54] Hence, reliance on public policy leads in such circumstances to the emergence of a modified version of the foreign judgment following the intervention of the enforcing national court. In other words, the latter does not only conclude that the damages awarded have been manifestly unreasonable but also specifies the exact amount that is proportionate to the harm inflicted to the claimants and must be awarded to them. But this is something that only the court having the competence to examine the substance of the case should be allowed to do.

VI. Protection of freedom of the press under public policy and the Anti-SLAPP directive

An interesting feature of the Real Madrid case is that the defendants did not have the opportunity to rely on art. 11 of the Charter in the judicial proceedings in the member state of origin, because the case did not involve any kind of member state action coming within the scope of European Union law and there was in particular no implementation of secondary legislation in the area concerned.[55] Consequently, another important practical outcome of the preliminary ruling is that it made it possible to provide Charter protection at the time of enforcement of the foreign judgment when the enforcing national court was indisputably implementing the requirements of the Brussels I Regulation. In other words, reliance on public policy permitted to address under the Charter a situation that would otherwise have remained outside the reach of European Union law despite its potential impact on freedom of the press.

However, the legal landscape in the area has recently evolved following the adoption of the Anti-SLAPP Directive.[56] The aim of this directive is to protect persons engaging in public participation from manifestly unfounded and abusive court proceedings in civil matters with cross border implications. It defines public participation as the making of any statement and the carrying out of any activity by natural and legal persons in the exercise of fundamental rights and especially of the right to freedom of expression and information, which concerns a matter of public interest.[57] A matter of public interest is defined broadly as any matter which affects the public to such an extent that this may legitimately take an interest in it.[58] The court proceedings are considered to be abusive according to the directive when they are not instituted to genuinely assert and exercise a right but have as their main purpose the prevention and restriction of public participation and pursue unfounded claims.[59] The directive provides to the person concerned a number of remedies against the institution of abusive court proceedings. These include the obligation of the claimant to bear all types of costs of the proceedings that can be awarded under national law and the payment of compensation for damage.[60]

The directive clearly attempts to address the problem of strategic lawsuits against public participation.[61] These do not principally have as their objective to win a case but rather purport to exercise a financial and psychological pressure on the person concerned so as to be effectively deterred from speaking out on a matter of public interest. The claimants rely in such cases on the cost and the burden involved in being obliged to participate in lengthy legal proceedings, as well as on the threat of the payment of excessive damages. Very often, they count on the imbalance of power that exists between them and the persons involved in public participation and exploit this inequity of arms to institute multiple proceedings in relation to similar matters so as to exhaust the financial and other resources of their opponents. These lawsuits are considered particularly hazardous for freedom of expression not only because they adversely affect the specific individuals they target but also because they dissuade other natural and legal persons from reporting on the same and similar matters of public interest in the future.[62]

Following the adoption of this directive, a person will no longer be obliged to wait for the case to reach before the enforcing national court in order to invoke under public policy the right to freedom of expression as enshrined in the Charter. That is not to say of course that the legal proceedings instituted in the Real Madrid case would definitely have been considered as abusive under the directive.[63] But at least the defendants would have been given the opportunity at a much earlier phase of those proceedings to invoke before the competent national courts in the member state of origin their right to freedom of the press as protected under the provisions of European Union law. Consequently, the adoption of the directive adds an extra layer of protection to the right to freedom of expression compared to the one that would otherwise be available under the Brussels I Regulation as interpreted in the Real Madrid preliminary ruling.

However, the complementarity of the protection provided under the directive and the public policy clause can also be seen from the other way round. The directive contains an explicit provision that obliges to refuse the recognition and enforcement of third country judgments in court proceedings against public participation by a person domiciled in a member state, when these proceedings are considered abusive under the law of the enforcing member state.[64] Because of the operation of the principle of mutual trust, there has not been the introduction of a similar provision for judgments issued in another member state. For those judgments, the Real Madrid preliminary ruling comes to provide protection in case the abusive court proceedings lead eventually to the violation of the right to freedom of expression of the person concerned. It could be maintained that reliance on public policy comes in such an event to remedy any manifest error that may have been committed in the member state of origin in the practical application of the directive, which has not been corrected as would normally be expected through the use of the available national legal means.

VII. Manifest breaches of fundamental rights and the principle of mutual trust: prospects of a spillover effect?

Looking beyond the area of freedom of expression, the ultimate message communicated by the Real Madrid case is that a manifest violation of a fundamental right is indeed capable of lifting the presumption of effective and equivalent fundamental rights protection stemming from the operation of the principle of mutual trust.[65] It is rather regrettable in this respect that the preliminary ruling does not elaborate on the meaning of a manifest breach and does not explain how this will be determined in cases involving other fundamental rights. Based on the reasoning employed in the Real Madrid case, one could nevertheless assume that the violation will be considered as manifest when it is both grave and evident on the basis of well-established relevant case law developed by the Court and the European Court on Human Rights.[66]

The final question that arises in this respect is whether the existence of a manifest violation of a fundamental right may introduce exceptions to the application of the principle of mutual trust also in other legal areas characterized by the operation of legal instruments based on this principle, most notably in the field of judicial cooperation in criminal matters.[67] The relevant case law in this area has concerned thus far primarily the application of the Framework Decision on the European Arrest Warrant.[68] The principle of mutual trust is central to the effective operation of the system established by this Framework Decision and to the attainment of its objectives. It is considered the basis of the principle of mutual recognition, which constitutes the cornerstone of judicial cooperation in criminal matters.[69] The joint effect of these principles is to impose on member states the obligation to execute in a rather automated manner any European Arrest Warrant that has been validly issued by a competent judicial authority. 

The Court adopted initially an approach that seemed to imply the unconditional operation of these principles under the Framework Decision, stressing that a refusal to surrender the requested person can only take place on the basis of the mandatory and optional reasons for non execution that are specifically enumerated in its provisions.[70] However, it explained in its subsequent case law that it is possible to rebut in exceptional circumstances the presumption that the surrender of the person concerned to the issuing member state will not violate their fundamental rights. This requires the executing judicial authority to establish as a first step the existence of systemic deficiencies in the issuing member state that adversely affect the general level of protection of the fundamental right at stake in that country. As a second step, it must also ascertain that these systemic problems pose in the specific circumstances of the case a real risk of breach of that right for the requested person. That case law was initially introduced in relation to the absolute prohibition of inhuman and degrading treatment.[71] Later on, it was also extended to the right to a fair trial and the requirements of judicial independence and of a tribunal previously established by law.[72]

Since the introduction of this exceptional circumstances doctrine, the Court has confirmed on several occasions the obligation to perform both steps of this assessment.[73] It has also underlined that an executing authority is not allowed to bypass the first part of this examination and refuse the surrender of the requested person in the absence of evidence attesting the existence of systemic problems in the issuing member state.[74] In fact, there has been to date only one case in which it was accepted that an executing authority may be obliged exceptionally to postpone and eventually refuse the surrender of a person suffering from a serious chronic and potentially irreversible illness without being obliged to establish first the existence of systemic deficiencies in the quality of medical care and assistance available in the issuing member state.[75] But even in that case, the language used attests the intention to consider it as a highly exceptional occurrence that can only be explained by reference to the specificities involved in life and health related risks.[76]

How likely is it then for the preliminary ruling in Real Madrid to produce a spillover effect in the area of judicial cooperation in criminal matters and to allow to evade the application of the systemic deficiencies requirement in case of a manifest risk of breach of a fundamental right? Apparently, the legal instruments in that area do not contain a public policy proviso since this has its origins in private international law. On the other hand, they usually contain a fundamental rights clause that makes their application dependent on the observance of the Charter.[77] It could be therefore maintained that the perpetration of a manifest fundamental rights violation and even the real risk of such a breach should permit the exercise of an individualized examination of the case regardless of the existence of systemic deficiencies in the general level of protection of the right concerned in any given member state. That is because the presumption of an effective and equivalent level of protection of fundamental rights in all member states is overturned in such circumstances by the patent nature of the infringement involved.

One could argue of course that the preliminary ruling in Real Madrid refers to an already committed violation of a fundamental right, whereas the case law in the area of judicial cooperation in criminal matters to a real risk of breach of such a right. It needs nevertheless to be noted that even as regards the right to freedom of the press, its infringement is actually determined by looking at the chilling effect that the enforcement of a judgment is likely have on the ability of the media to perform its information and monitoring role. In other words, the examination relates in these circumstances to the existence of a manifest risk of a deterrent effect on public participation and media coverage.[78] Furthermore, even in the criminal justice area there are many occasions that the breach may have already been committed. Suffice it only to consider in this respect the situation of a person that is requested by a member state in order to serve a prison sentence imposed by a judicial decision that has been adopted in violation of the legal safeguards flowing from the right to a fair trial. If this breach is manifest and all the remedies available in the issuing member state have been exhausted, it is not readily apparent why the refusal to surrender the person concerned should require a prior establishment of systemic deficiencies relating to the protection of this right at the country level.

And yet, such an individualized assessment based solely on the application of the manifest breach criterion does not seem very likely to take place in the foreseeable future in the criminal justice area. The restrictive approach that has been adopted there ultimately promotes the objectives of criminal law, namely avoiding the risk of impunity for perpetrators of crimes and protecting the rights of the victims.[79] One could argue therefore that the relevant case law may be indirectly motivated by expediency reasons and effectiveness considerations, in the sense that the application of the systemic deficiencies requirement reduces considerably the chances of relying successfully on the provisions of the Charter in order to escape justice. It is of course true that the objectives of criminal law can also be taken into account in the context of an individualized appraisal based on the concrete circumstances of the case, but solely as balancing factors and only as regards non absolute fundamental rights. On the contrary, the rejection of a fundamental rights complaint on the basis that the existence of systemic problems in the issuing member state has not been established permits the realization of these objectives regardless of the nature of the right involved. Unsurprisingly therefore, there has recently been an extension of the systemic deficiencies requirement to other areas of judicial cooperation in criminal matters beyond that of the European Arrest Warrant.[80]

VIII.    Epilogue

From a freedom of expression point of view, the Real Madrid preliminary ruling has already been received in a largely positive manner.[81] It is once more confirmed that mutual trust is not limitless and that recourse to public policy is possible to refuse the recognition and enforcement of a foreign judgment if this is vitiated by a manifest breach of a fundamental right as enshrined in the Charter. Furthermore, the very extensive reliance made by the Court on the relevant case law under the European Convention on Human Rights underlines the pivotal importance of freedom of the press and provides at the same time a common basis for the understanding and coherent application of the manifest violation requirement in this specific area. That is all the more important since this preliminary ruling comes only a few months after the adoption of the Anti-SLAPP Directive, which operates in an essentially complementary fashion with the public policy proviso of the Brussels I Regulation as regards the measure of protection provided in the member state of origin and the member state of enforcement to persons engaged in public participation.

However, the preliminary ruling does not take the opportunity to explain how the manifest breach requirement will be applied in relation to other fundamental rights and especially in cases that do not involve the award of monetary compensation by the issuing national court. And although it attempts to conceal the problem by referring to the classic formula of division of competences between issuing and enforcing national courts, it cannot eventually hide the reality that reliance on public policy in cases involving substantive fundamental rights can easily turn into a prohibited review of the substance of the judgment issued in the member state of origin. Ultimately therefore, this case accentuates once more the delicate balance that needs to be kept between the attainment of the objectives stemming from the observance of the mutual recognition obligations and the protection of the fundamental rights of individuals.