Introduction
In recent years, the threat posed by strategic lawsuits against public participation (SLAPPs) has come sharply into focus in the EU. The case of Maltese journalist Daphne Caruana Galizia, who faced over 40 defamation actions before her assassination, became emblematic of how powerful actors use litigation to silence critical reporting.Footnote 1 These lawsuits can chill public debate and undermine press freedom, particularly when paired with excessive damages claims.
The term ‘SLAPP’ was first coined by US scholars Penelope Canan and George W. Pring in the 1980s to describe lawsuits brought with the primary aim of silencing speech on matters of public interest.Footnote 2 Such actions typically involve a stark power imbalance: the claimants are often corporations, political figures, or other powerful actors, while the targets tend to be journalists, activists, non-governmental organisations, or academics. The objective is rarely to win the case on the merits, but rather to burden the defendant with legal costs, time, and stress, thereby introducing a chilling effect. SLAPPs are particularly harmful when paired with disproportionate damages claims, as they can financially and psychologically exhaust their targets, even when the speech in question serves the public good.
In response, the EU adopted the Anti-SLAPP Directive (Directive (EU) 2024/1069),Footnote 3 aiming to curb abusive cross-border litigation that threatens freedom of expression and public participation.Footnote 4 However, questions remained about whether existing legal instruments, most notably the Brussels I Regulation, could already accommodate such protection.
Against this backdrop, the Grand Chamber of the Court of Justice of the European Union (the Court) delivered a landmark judgment in Real Madrid Club de Fútbol and AE v EE and Société Éditrice du Monde SA,Footnote 5 addressing whether the enforcement of a foreign defamation judgment within the EU can be refused on the basis of public policy (as it causes a manifest breach of freedom of the press as protected by Article 11 of the European Union Charter of Fundamental Rights (the Charter)). The case raised fundamental questions about the relationship between mutual recognition of judgments under the Brussels I Regulation and the protection of press freedom. In a judgment that closely followed the Opinion of Advocate General Szpunar,Footnote 6 the Court held that Articles 34(1) and 45 of the Brussels I Regulation,Footnote 7 interpreted in light of Article 11 of the Charter, require member state courts to refuse enforcement of a foreign judgment that imposes damages on a newspaper and its journalist if doing so would result in a manifest breach of press freedom, and thus violate the public policy of the enforcing state.
This case note first outlines the background of the case and examines the reasoning of Advocate General Szpunar and the Court. It then explores the judgment’s broader implications in areas such as the limits of mutual recognition based on mutual trust in judicial cooperation, the role of Article 2 TEU values in cross-border enforcement, the interplay between freedom of expression and public policy exceptions under the Brussels I Regulation, the influence of the European Court of Human Rights jurisprudence on the Court reasoning, and the potential resonance of the ruling with the Union’s Anti-SLAPP framework and accession to the Convention.Footnote 8
Facts of the case
In 2006, the French newspaper Le Monde published an article titled ‘Dopage: le football après le cyclisme’ (‘Doping: first cycling, now soccer’), in which it alleged that two prominent Spanish football clubs, Real Madrid Football Club and FC Barcelona, had retained the services of Dr Eufemiano Fuentes (a so-called ‘doping doctor’), a figure linked to the high-profile ‘Operación Puerto’ doping scandal. The article was widely circulated and commented on in the Spanish media. Although Le Monde published a letter of denial from Real Madrid, it did so without further editorial comment.
Following the article’s publication, Real Madrid and a member of its medical staff brought defamation proceedings before Court of First Instance No. 19 in Madrid, claiming reputational damage. The Spanish court ruled in their favour and awarded damages: EUR 300,000 to Real Madrid and EUR 30,000 to the doctor. The judgment was upheld on appeal by the Audiencia Provincial de Madrid, and the Spanish Supreme Court (Tribunal Supremo) later dismissed the defendants’ cassation appeal. Enforcement of the final judgment was ordered on 11 July 2014, requiring the journalist and the publisher to pay approximately EUR 390,000 to Real Madrid and EUR 33,000 to the medical staff member, inclusive of interest and legal costs.
In 2020, Real Madrid applied to enforce the Spanish judgments in France under Council Regulation (EC) No. 44/2001 (the Brussels I Regulation). The Cour d’appel de Paris granted exequatur (a declaration of enforceability), but the French Cour de cassation ultimately set aside that decision, invoking the public policy clause. The French appellate court had found that the damages imposed in Spain had a deterrent effect on the defendants’ participation in public debate and thereby curtailed the press’s ability to fulfil its democratic function. It considered that enforcing such penalties would violate freedom of expression to an unacceptable degree, rendering the Spanish judgment contrary to French international public policy. While the ruling formally referred to French ordre public, the underlying reasoning drew heavily on Article 10 of the European Convention on Human Rights, as interpreted by the Strasbourg Court in its case law on press freedom, deterrent effect, and proportionality. This highlights a conceptual paradox: although the public policy clause under Articles 34 and 45 of the Brussels I Regulation is meant to reflect the specific legal standards of the enforcing member state, in this case, the French courts assessed ordre public through a European lens. The case thus exemplifies how national public policy can become a vehicle for applying supranational fundamental rights norms, particularly where EU secondary law (such as the Brussels I Regulation) governs cross-border enforcement.Footnote 9
As a result, the Cour de cassation referred seven preliminary questions to the Court under Article 267 TFEU. The central legal issue was whether freedom of the press, as guaranteed by Article 11 of the Charter, constitutes a fundamental principle of EU law whose violation may justify refusal to enforce a judgment from another member state on public policy grounds under Articles 34 and 45 of the Brussels I Regulation. Moreover, the Court was asked whether partial enforcement could be considered. The dispute illustrates how cross-border enforcement of civil judgments under the Brussels I Regulation may give rise to tensions between mutual recognition and national conceptions of fundamental rights, particularly in defamation and press freedom cases.
Opinion of Advocate General Szpunar
In his Opinion delivered on 8 February 2024, Advocate General SzpunarFootnote 10 proposed that a court of a member state should refuse or revoke the enforcement of a foreign judgment where doing so would result in a manifest breach of freedom of expression, as protected under Article 11 of the Charter. He described press freedom not only as a fundamental right but as an essential component of the EU’s legal order, due to its centrality to democracy, public discourse, and the rule of law. Enforcement of a judgment that interferes with this right, he argued, may be incompatible with EU law, even where the original proceedings took place outside the scope of EU law.
Advocate General Szpunar’s reasoning centred on the deterrent effect that certain foreign judgments may have on media freedom. Where damages are disproportionate to the harm caused, enforcement may chill speech not only by the defendants themselves but across the broader media landscape. In his view, Article 34(1) of the Brussels I Regulation, in conjunction with Article 11 of the Charter and Article 45(1) and (2) of the same Regulation, should be interpreted to allow refusal of enforcement where the foreign judgment ‘clearly violates’ freedom of press and, by doing so, infringes the public policy of the enforcing state.Footnote 11
The Advocate General proposed specific criteria for determining whether damages are manifestly disproportionate. In the case of a natural person, enforcement would be problematic where the damages awarded are several dozen times the average salary in the member state concerned, or where repayment would take many years and threaten their economic livelihood. In the case of a legal entity, enforcement may be denied where the damages are so severe as to threaten its continued existence. While he acknowledged that these criteria must be applied cautiously and contextually,Footnote 12 they offer concrete guidance to national courts evaluating whether freedom of expression has been infringed in a way that justifies derogation from mutual recognition.
Advocate General Szpunar emphasised that public policy derogations must be interpreted narrowly, given the foundational role of mutual trust in the EU legal system. However, that principle is not absolute. Drawing on established case law of the Court, he argued that the public policy clause may apply in exceptional circumstances where the enforcement of a judgment would result in a ‘manifest breach of a rule of law regarded as essential in the legal order’ of the member state in which enforcement is sought. In such cases, the obligation of mutual recognition yields to the protection of fundamental rights, reflecting the limits of the mutual trust principle. He added that courts must identify the precise fundamental principle at stake when invoking public policy, in line with the requirement of legal certainty.
In elaborating on this framework, Advocate General Szpunar invoked both Article 10 of the Convention and the Charter, underscoring their complementary relationship. He acknowledged that the Charter was not applicable in the Spanish proceedings, since the defamation claim had no basis in EU law. Nonetheless, he argued that the Charter becomes fully applicable during the enforcement stage in another member state, because the Brussels I Regulation constitutes EU secondary law and exhaustively governs the grounds for refusing enforcement. In this sense, the enforcement proceedings activate the Charter, allowing courts to assess the compatibility of the foreign judgment with EU fundamental rights.
The Advocate General also addressed the relevance of mutual trust. He noted that mutual trust rests on the presumption that courts in all member states uphold fundamental rights. However, where enforcement of a judgment could create serious structural effects on freedom of expression in the forum state, the presumption underpinning mutual recognition may be rebutted. He recalled that, under the principle of procedural autonomy, defendants in the member state of origin are expected to exhaust all legal remedies available to them there, but that this does not preclude an assessment of fundamental rights at the enforcement stage. Article 267 TFEU and the preliminary ruling mechanism, he suggested, ensure coherence in how member states interpret and apply EU law.
A further question addressed in the Opinion concerned the nature of the damages. Advocate General Szpunar acknowledged that the Spanish courts had awarded compensatory, not punitive damages, and that the enforcing court cannot reassess the classification of those damages. Traditionally, only punitive damages had triggered public policy concerns under EU law. However, he argued that developments in international law, particularly the 2019 Hague Judgments Convention,Footnote 13 now suggest that excessive compensatory damages may also be challenged under public policy clauses. Article 10(1) of the Convention, as well as its Explanatory Report, support this view. Thus, the Advocate General proposed that even compensatory awards may justify refusal of enforcement where they are clearly disproportionate and infringe protected rights.
Crucially, Advocate General Szpunar stressed that the chilling effect must be significant, not merely hypothetical or limited to the individual defendant. Rather, enforcement must be shown to threaten media freedom and public discourse more broadly, thereby justifying the protection of the public interest in the enforcing state. In the present case, he concluded that the enforcement of the Spanish judgment could have such a deterrent effect on journalists in France, given the severity of the damages and the public interest nature of the original reporting.
Finally, the Advocate General addressed the tension between competing Charter rights. While non-enforcement protects freedom of expression under Article 11, it simultaneously limits the applicants’ right to enforcement of judgments under Article 47(2) of the Charter. He therefore proposed a proportionality assessment, whereby national courts must weigh the severity of the interference with press freedom against the legitimacy and necessity of enforcing the foreign judgment. This balancing exercise, he noted, typically draws on the case law of the European Court of Human Rights, particularly in defamation cases like Tolstoy Miloslavsky v UK.Footnote 14 However, because Strasbourg has not yet developed a clear standard for conflicts between freedom of expression and cross-border enforcement rights, EU courts must develop an autonomous framework, consistent with the Charter, to ensure that the enforcement of judgments does not disproportionately restrict fundamental rights.
The judgment of the Court (Grand Chamber) of 4 October 2024
In its decision in Case C-633/22, Real Madrid, the Grand Chamber confronted a tension between the EU’s system of cross-border judicial cooperation and the fundamental right to freedom of expression. The Court held that a national court must refuse to enforce a foreign judgment if enforcement would result in a manifest breach of press freedom protected under Article 11 of the Charter – thereby triggering the public policy exception in the Brussels I Regulation. This ruling marks the first time that the Court has recognised freedom of the press as a potential limit on the mutual recognition of civil judgments within the Union. Crucially, the Court’s reasoning emphasised that such refusals must remain strictly exceptional and narrowly construed, in order to safeguard fundamental rights without undermining the general system of mutual recognition, which rests on the principle of mutual trust among member states.
The Court’s answer gives analytical primacy to the fundamental right at stake, while situating it within the framework of mutual trust. This trust materialises through the Brussels I regime’s mechanism of mutual recognition, a cornerstone of the EU’s area of justice.Footnote 15 Ordinarily, a court in one member state may not review the merits of a judgment from another member state (the prohibition of révision au fond in Article 45(2) of Brussels I). Recognition may be refused only on the limited grounds in the Regulation, and the public policy exception in particular ‘constitutes an obstacle’ to the Regulation’s aims and thus must be interpreted strictly. In line with established case law, the Court reiterated that only a manifest breach of a law regarded as essential in the EU legal order or in that of the enforcing state, including a fundamental right, can trigger the public policy escape clause. This sets a high threshold: mutual recognition rests on the presumption that all member states comply with EU fundamental rights, and only in very exceptional cases may that presumption be rebutted.Footnote 16
Having framed the exception narrowly, the Court turned to freedom of expression and media freedom as guaranteed by Article 11 of the Charter (which corresponds to Article 10 of the Convention). It noted that while freedom of the press is not absolute and may be subject to defamation laws, it is a foundational value in a democratic society – indeed, one of the values in Article 2 TEU on which the Union is built.Footnote 17 The judgment, echoing the standards established by the European Court of Human Rights, stressed the essential role of the press as a ‘public watchdog’ in holding power to account.Footnote 18 Reporting on matters of public interest (such as doping in professional sports) deserves heightened protection.Footnote 19 Thus, enforcing a foreign judgment in this area demands a careful balance so as not to discourage legitimate journalism.Footnote 20 The Court explicitly cited Strasbourg jurisprudence to underline that any award of damages for harm to reputation must bear a reasonable proportionality to the harm caused, lest it deter the media’s exercise of freedom of expression.Footnote 21 In other words, disproportionate damages can violate press freedom, aligning the Court with the European consensus that excessive defamation sanctions imperil democratic discourse.Footnote 22
Against that backdrop, the Court set out criteria for national courts to assess whether enforcing a foreign defamation judgment crosses the public policy threshold. Crucially, this assessment does not permit a full rehearing of the case or a de novo review of the truth of the allegations. The enforcing court must accept the issuing court’s findings on the defamatory nature of the statements, the existence of harm, etc., as it cannot question the foreign court’s substantive determinations. What the enforcing court can do is scrutinise the effects of the judgment’s enforcement in light of fundamental rights.Footnote 23
The magnitude of the damages is a key factor. If the sum awarded ‘exceeds the material and immaterial damage’ actually suffered, or is so significant relative to the defendant’s resources that it effectively penalises the publisher beyond compensation, then it may be deemed disproportionate. A deterrent effect can be found even with a relatively modest amount, if it is substantial for the specific defendant (for example, a journalist of modest means) or if it deviates markedly from standards in comparable cases.Footnote 24 In assessing this, the Court noted, the enforcing court may take into account the financial capacity of the media defendant – a criterion drawn from the European Court of Human Rights’ case law6. For instance, an award that might jeopardise a newspaper’s economic viability or force an individual journalist into financial ruin would raise serious concerns.Footnote 25
Importantly, the Court added that the ‘seriousness of the wrong’ committed by the defendants and the extent of the harm as found by the original court are also relevant considerations. This nuance tempers the analysis: a blatantly false, malicious defamation might justify a higher award without breaching public policy, whereas a good-faith publication on a matter of public interest warrants greater leeway for the press.Footnote 26 By weighing the nature of the conduct (fault) alongside the quantum of damages, the Court signalled that only plainly excessive awards in light of the case’s facts will qualify as manifest breaches.Footnote 27
In sum, the Court sketched a proportionality test for the enforcing judge: would making the defendant pay this foreign-awarded sum go beyond redress for the claimant and instead unduly burden freedom of the press? If enforcing the full judgment ‘would have a deterrent effect on future media coverage’ of similar public-interest matters in the member state of enforcement, then Article 34(1) Brussels I may be invoked.
Commentary
The difference between the Advocate General’s Opinion and the judgment
The relationship between the Advocate General’s Opinion and the Court’s judgment offers insight into the evolving contours of EU public policy exceptions: where the Advocate General argued for a bold integration of fundamental rights into enforcement proceedings, the Court took a more restrained and incremental path.
Notably, the Court indicated that the refusal of enforcement need not be an all-or-nothing matter. The French courts, it suggested, could ‘refuse enforcement to the extent that it has a deterring effect on freedom of expression’.Footnote 28 This implies the possibility of partial enforcement or proportionate reduction: for example, enforcing only that portion of the damages that is deemed non-excessive, or enforcing one plaintiff’s award but not the other’s, if only part of the judgment is problematic. By allowing a calibrated response (‘in so far as’ the award exceeds what is proportionate), the Court departed slightly from Advocate General Szpunar’s approach, which had not explicitly articulated partial enforcement. This partial-recognition technique is a novel development, showcasing the Court’s effort to mitigate the tension between mutual recognition and fundamental rights rather than simply choosing one over the other.
Throughout its reasoning, the Court drew heavily on Advocate General Szpunar’s Opinion and the doctrinal path he charted, while also refining it. The Advocate General had opined that excessive defamation damages can violate Article 11 of the Charter, effectively amounting to an abuse that justifies a public policy exception. He emphasised the severe deterring effect such awards could have not only on the defendants in this case but on investigative journalism generally. The Court embraced this central insight – indeed, the judgment’s focus on chilling effects and public watchdog journalism mirrors the Advocate’s free expression-centred analysis.Footnote 29 Both the Opinion and the judgment elevate press freedom to a ‘fundamental principle of the EU legal order’ that warrants protection via public policy. The Court also adopted the methodological bridge to the Convention law that Szpunaer proposed: since Article 11(2) of the Charter guarantees media freedom ‘to the same extent as Article 10 of the Convention’, the European Court of Human Right’s jurisprudence provides the yardstick for assessing when defamation remedies become disproportionate. Thus, the Grand Chamber’s ruling is suffused with Strasbourg principles – from the concept of pluralism in Article 11(2) of the Charter to specific European Court of Human Rights precedents like Bladet Tromsø and Cumpănă and Mazăre, which were cited to illustrate how excessive sanctions endanger journalism.Footnote 30
Where the Court diverged slightly from Advocate General Szpunar was in tone and scope. While the Advocate General did not refer explicitly to the EU’s anti-SLAPP agenda, he clearly framed disproportionate defamation damages as a potential abuse of civil proceedings capable of undermining media freedom, thereby justifying recourse to the public policy exception under Article 34(1) of Brussels I. The Opinion emphasised that such awards could produce a chilling effect not only on the defendants but on journalistic engagement in public interest reporting more broadly. The Court largely endorsed this perspective but adopted a more restrained rhetorical posture. It reiterated that not every substantial damages award constitutes a violation of press freedom, only those that meet the threshold of a ‘manifest’ and ‘exceptional’ breach of fundamental rights.Footnote 31
The Advocate General had proposed concrete indicators of disproportionality, such as situations where damages would threaten a media outlet’s financial viability or would amount to several years of income for an individual journalist. The Court mirrored these substantive factors, particularly financial capacity and deterrent effect, but refrained from specifying numerical thresholds, instead opting for a qualitative proportionality test. Additionally, the Court gave weight to the seriousness of the defamatory statement and the extent of harm suffered, factors which Advocate General Szpunar had not addressed in detail.Footnote 32 This can be seen as a refinement that reinforces the dual need to safeguard press freedom and uphold legitimate interests in protecting reputation.
In the result, the Grand Chamber’s ruling closely follows the Advocate General’s fundamental reasoning, recognising press freedom as an integral part of the Union’s public policy, but frames the enforcement judge’s task in carefully delimited terms. The outcome is that the French courts may refuse to enforce the Spanish judgment if and to the extent that doing so would chill freedom of the press, but they must do so only on the basis of a clear, evidence-based finding of disproportionality.
The Court underlines that the referring court is only allowed to assess the future effects of the original judgment on public policy.Footnote 33 It thereby affirmed that the principle of mutual recognition does not entail unconditional acceptance of foreign judgments where their enforcement would seriously undermine fundamental rights. At the same time, the Court preserved the effectiveness of the Brussels I regime by cautiously endorsing partial enforcement and requiring strict scrutiny of the public policy exception’s limits. By relying on Advocate General Szpunar’s insights into deterrent effects, while tempering them with its traditionally restrained approach to public policy clauses, the judgment strikes a careful balance. While the ruling does not explicitly redefine freedom of expression as part of EU public policy, it suggests that Article 11 of the Charter may serve as a relevant benchmark in assessing cross-border enforcement where rights risks are manifest.
Recalibrating mutual trust: Article 2 TEU values in Real Madrid
The Real Madrid v Le Monde judgment represents a development in the Court of Justice’s case law on the interplay between Article 2 TEU values and the principle of mutual recognition. While not framed in overtly value-based terms, the judgment suggests that foundational EU values, particularly freedom of expression and media freedom as essential elements of democracy, can operate as relevant interpretive considerations within judicial cooperation. While the Court itself does not dwell on values language, it nonetheless may be read as a modest extension of the Court’s values jurisprudence from cases like Repubblika into the realm of private-law enforcement.
Until no more than a decade ago, the Court was actively using what Dean Spielmann calls the pro-integratione approach to human rights.Footnote 34 The protection of fundamental rights was aimed at facilitating the flow of capital and goods between member states and not an end in itself. The Opinion of Advocate General Szpunar and the judgment underline the importance of freedom of expression for the whole EU and its functioning, and can be seen as continuing a shift in the approach of the Court from what Spielmann observed. In Real Madrid v Le Monde, the Court sought to balance two core principles of EU law: the mutual recognition of judicial decisions and the protection of fundamental rights. This approach reflects a broader jurisprudential trend in which mutual trust remains the default assumption underpinning judicial cooperation, but may yield in the face of a manifest breach of rights protected under EU law.Footnote 35
Crucially, the judgment offers an example of a more nuanced approach than in prior rulings such as Krombach Footnote 36 and the LM Footnote 37 judgment, in which mutual trust was rebutted only under strict conditions, typically involving systemic deficiencies in the rule of law or violations of the right to a fair trial. In LM, the Court introduced a two-step test for derogating from mutual trust in the context of European Arrest Warrants: first, the existence of systemic or generalised deficiencies in the issuing member state; and second, a real risk to the individual concerned.Footnote 38
The two-step test was criticised as it ‘give[s] rise to Herculean hurdles in which the Court echoes its position in Opinion 2/13 Footnote 39 that limitations to mutual trust are to be reserved for “exceptional cases”’.Footnote 40 Furthermore, Petra Bárd and Dimitry Kochenov have argued, the Court has traditionally privileged mutual recognition even where it may threaten individual rights, particularly in the context of the European Arrest Warrant.Footnote 41 By contrast, Real Madrid requires no evidence of systemic deficiencies in the Spanish judiciary. Instead, the judgment may reflect an incremental evolution by permitting a case-specific and rights-based rebuttal of mutual trust, grounded in the anticipated chilling effect of enforcement on freedom of expression.Footnote 42 It may indicate an emerging trend in the Court’s approach, giving greater analytical weight to Charter rights within the mutual recognition framework.
This development parallels the logic underpinning the human rights exception found in the draft Accession Agreement to the European Convention on Human Rights.Footnote 43 That exception allows for the refusal of mutual recognition where a real and individual risk of a fundamental rights violation exists, particularly in light of evolving case law from both the Strasbourg Court and the Court.Footnote 44 While the Real Madrid judgment employs a different doctrinal framework, invoking the concept of a ‘manifest breach’ of public policy under Article 34(1) of the Brussels I Regulation and applying a proportionality test, the underlying rationale echoes concerns reflected in the Convention system. Importantly, the Real Madrid ruling affirms that mutual recognition cannot override fundamental rights. However, it also sets limits: the courts of the member state asked to enforce the judgment are not allowed to conduct a full substantive review of the original decision. Instead, refusal of enforcement is only permissible when the judgment’s execution would have a prospective chilling effect on rights, such as freedom of expression.
That said, the current wording of the draft Accession Agreement is more cautious than earlier iterations. Earlier drafts, particularly the 2013 version, contained stronger language, warning against the ‘automatic and mechanical’ application of mutual trust in a manner that could harm human rights.Footnote 45 This phrase was later softened to address institutional concerns, especially those of the Court, about maintaining the autonomy of Union law. The final 2023 consolidated draft retains the exception but phrases it more diplomatically, stating merely that ‘the protection of human rights guaranteed by the Convention shall be ensured’ in the context of mutual trust, thereby affirming a commitment to rights protection without explicitly limiting mutual recognition.Footnote 46
In this context, the doctrinal trajectory from Opinion 2/13 to Real Madrid is also notable. In Opinion 2/13, the Court of Justice expressed concern that allowing the European Court of Human Rights to scrutinise the operation of EU judicial cooperation mechanisms could undermine the principle of mutual trust among member states. In Real Madrid, however, in a limited way the Court demonstrates that it can internally reconcile fundamental rights protection with mutual recognition. It draws heavily on the European Court of Human Rights jurisprudence, particularly Bladet Tromsø and Cumpănă and Mazăre, to construct a proportionality test for assessing when defamation damages are so excessive that they chill journalistic expression.Footnote 47 As noted by Gráinne de Búrca and Claire Kilpatrick,Footnote 48 the international framework for protecting human rights necessitates not just holding duty-bearers accountable to rights-holders but also ensuring mutual accountability among duty-bearers. This may be read as an implicit endorsement of such an approach.
The Real Madrid case may reflect the growing relevance of constitutional values in cross-border adjudication. While the case does not concern a classic horizontal private law dispute, it involves private parties and addresses whether enforcement of a foreign civil judgment, in this case for defamation, may be refused on the basis of a manifest breach of Article 11 of the Charter. In this sense, the judgment arguably illustrates how EU constitutional values may inform in adjudicative contexts beyond purely state-level infringements. Although Hesselink’s critique focuses on the risks of using contested values to reshape substantive private law obligations, the Real Madrid judgment shares his concerns about the underlying tension between legal certainty and normative pluralism.Footnote 49 The Court’s careful framing of the public policy exception – limiting its use to cases of manifest rights violations and excluding any substantive review of the original judgment – demonstrates judicial caution against overextending value-based reasoning into private legal spheres, echoing Hesselink’s warning about the legitimacy challenges of projecting constitutional values onto private relationships in a pluralist society.Footnote 50
The Court’s reasoning is also consistent with its more recent judgment in Repubblika,Footnote 51 where it emphasised that Article 2 TEU values, including democracy and the rule of law, are binding constitutional standards. The Court held that these values define the EU’s legal identity and cannot be diluted post-accession. In Real Madrid, the Court extends that logic by recognising that a manifest violation of Article 11 of the Charter (freedom of expression and media pluralism) by a judgment from another member state may justify refusal of enforcement under Article 34(1) of the Brussels I Regulation. In other words, while Repubblika reaffirmed that Article 2 TEU values must be upheld within national systems, Real Madrid can be viewed as building incrementally on the Court’s values jurisprudence by permitting, in narrowly defined circumstances, a derogation from mutual recognition obligations where fundamental rights such as freedom of expression are at stake. While the Court did not explicitly position the case within its Article 2 TEU line, the judgment may be read as a modest extension of principles previously articulated in cases such as Repubblika, extending judicial discretion to consider rights impacts of cross-border judgments, even absent systemic deficiencies.
This case may be seen as a bottom-up complement to the Court’s top-down enforcement of EU values in the Commission v Poland series. The C-791/19Footnote 52 line exemplifies top-down, supranational enforcement of EU values, where the Commission acts proactively to stop member states from systemically dismantling their judicial systems. In Case C-791/19 and related cases, the Court found breaches of Article 19 TEU due to systemic interference with judicial independence. While the Commission v Poland series of cases targeted structural deficiencies, Real Madrid allows for scrutiny of individual decisions that may affect EU rights, such as freedom of expression, even in the absence of systemic collapse. This may indicate a growing judicial awareness of both systemic and situational threats to fundamental rights.
Importantly, the Court distinguishes between reviewing the substance of the original judgment and assessing the effects of its enforcement. The enforcing court cannot reopen the case (révision au fond) but may evaluate whether enforcement would produce a deterrent effect on press freedom. This is in line with the qualitative test advanced by Advocate General Szpunar in his Opinion, though the Court introduces an additional factor, the seriousness of the defamation, which was not emphasised by the Advocate General.
In conclusion, the judgment cautiously aims at further balancing the tension between mutual recognition and fundamental rights. The Real Madrid judgment does not radically change the existing doctrine, although it subtly affirms that EU constitutional values can shape the enforcement of civil judgments across borders.
The Real Madrid case and the EU’s Anti-SLAPP Framework
While Advocate General Szpunar did not explicitly reference SLAPPs or the EU’s anti-SLAPP agenda, his reasoning acknowledged that excessive defamation damages can have a chilling effect on journalistic freedom and may amount to an abuse of civil proceedings. The Court, while broadly following this reasoning, adopted a more restrained tone. It framed its analysis in terms of the Charter of Fundamental Rights and the European Court of Human Rights’ case law, without referring to SLAPPs or broader structural concerns. Still, the implications are clear: disproportionate compensation in defamation cases can violate Article 11 of the Charter and may thus constitute a manifest breach of public policy under Article 34(1) of the Brussels I Regulation.
In this sense, Real Madrid echoes the principles enshrined in the EU Anti-SLAPP Directive.Footnote 53 This Directive aims to protect individuals and entities engaged in public participation from abusive litigation intended to silence or intimidate them. Key provisions include mechanisms for early dismissal of manifestly unfounded claims, safeguards against the recognition of abusive foreign judgments, and the possibility for defendants to seek compensation for damages incurred due to such proceedings.
In Real Madrid, the Court emphasised that enforcement of a foreign judgment can be refused if it constitutes a manifest breach of public policy, particularly when it disproportionately affects freedom of expression. This approach mirrors the Directive’s stance on preventing the enforcement of judgments that could have a chilling effect on public discourse. By focusing on the potential deterrent impact of excessive damages on journalistic freedom, the Court’s reasoning aligns with the Directive’s objective to safeguard democratic participation and media pluralism.
Moreover, the judgment underscores the importance of assessing the proportionality of penalties in defamation cases, considering factors such as the severity of the alleged defamation and the financial capacity of the defendant. This nuanced evaluation reflects the Directive’s emphasis on protecting individuals from litigation that seeks to exploit legal systems to suppress legitimate public engagement.
Beyond the specific facts of the case, Real Madrid may be read as part of a broader constitutional turn in EU private international law, one that elevates structural concerns about democratic resilience. In particular, the judgment offers a judicial response to what SLAPP litigation represents at a systemic level: an asymmetry of power used to suppress accountability. As Borg-Barthet and Farrington argue, strategic litigation against the press, such as exorbitant defamation claims, threatens the core of democratic deliberation and should be treated as a violation of public order in the EU legal space.Footnote 54 The Court’s approach – especially its attention to proportionality, chilling effects, and the financial burden placed on journalists – reflects the functional logic of anti-SLAPP protections. By insisting that enforcement cannot replicate or entrench patterns of intimidation against the media, the Court aligns itself with a growing body of legal tools aimed at preventing democratic erosion through civil litigation. In that sense, Real Madrid does not merely interpret Brussels I in light of the Charter – it helps operationalise Article 11 of the Charter as part of public policy in enforcement.
In sum, Real Madrid thus adds a carefully delimited rights-based qualification to the mutual recognition framework. While doctrinally modest, its symbolic importance lies in reaffirming that mutual trust is not an absolute, and that fundamental rights, particularly freedom of expression, deserve robust safeguards even in the cross-border civil context. The judgment reaffirms the Charter’s operational role within the Brussels regime and reinforces the synergy between EU and Strasbourg human rights standards.
Conclusions
The judgment in Real Madrid Club de Fútbol and AE v EE and Société Éditrice du Monde SA may be seen as notable but cautious step in clarifying the relevance of fundamental rights within the EU’s framework for the cross-border enforcement of civil judgments. By finding that enforcement of excessive defamation damages can constitute a manifest breach of public policy under Article 34(1) of the Brussels I Regulation, the Court acknowledged the potential significance of freedom of expression, as protected by Article 11 of the Charter. The judgment’s reference to Strasbourg case law suggests a willingness to draw on broader human rights jurisprudence, while remaining within the limits of the mutual trust framework.
Although the Advocate General’s Opinion indirectly echoed concerns raised by SLAPP practices, the Court adopted a more restrained approach, focusing instead on the chilling effect of disproportionate sanctions. This judicial restraint reflects the Court’s effort to balance mutual recognition, still a core element of EU judicial cooperation, with case-specific rights concerns. The Court confirms that, in exceptional circumstances, concerns relating to fundamental rights may justify a derogation from mutual recognition. While the ruling does not engage with systemic rule of law concerns, it may illustrate a modest doctrinal shift – recognising that even individual judgments can raise fundamental rights questions in enforcement proceedings. Whether this case signals the beginning of broader rights-based limits to mutual trust remains an open question.
Acknowledgements
The author would like to thank Professor Gabor Halmai, Professor Rosalind Dixon and Professor Petra Bard for their continuous support. The author is grateful to the reviewers and editors for their thorough and insightful feedback on this article. Lastly, the author thanks Zuzanna Nowicka, with whom she co-authored a Verfassungsblog post on the Advocate General’s Opinion in the Real Madrid case.
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