The influence of fundamental rights on the free movement of decision in Europe in the light of the recent case law of ECJ

public policy excepcion new rules of the game? (CJEU 4 October 2024, c-633/22)

Abstract

The recent judgment of the Court of Justice of 4 October 2024 analyses the relationship between the public policy exception, provided for in the Brussels instrument as a ground for refusing recognition and enforcement of foreign decisions, and fundamental rights and freedoms, particularly the freedom of the press enshrined in Article 11 of the Charter of Fundamental Rights, in the case of an application for enforcement of a conviction for defamation. This recent doctrine has significant practical relevance, in that it conditions the effectiveness of certain foreign decisions in civil matters within the Brussels system (Brussels I Regulation-Recast), affecting the free circulation of decisions within the EU. Based on the necessary concurrence of the public policy exception as a limit to the recognition and/or enforcement of decisions within the EU in this type of litigation (convictions for defamation), given the presence of conflicting fundamental rights and freedoms, the interpretation of the scope of this clause is essential. This interpretation must necessarily be restricted and exceptional, so as not to break the principle of mutual trust that operates within the EU for all Member States. This restrictive approach requires the requested Member State to approach this ground for refusal (referred to in Article 45(1)(a) of Brussels I Regulation Recast) in such a way that all the circumstances of the case must be considered, albeit with the express limit of not being able to review the merits of the case (Article 52). In general terms, the judgment under study confirms the increasing influence of European law on the definition and application of the public policy exception within the scope of application of the Regulation, removing the control of the operability of this clause from the Member States in view of their individual legal systems. Particularly, this resolution modifies and affects the extraterritorial effectiveness of foreign decisions, undermining to some extent the principle of mutual trust that should operate within the EU, as well as the prohibition of review on the merits of the Brussels system.