October 2024 at the Court of Justice of the European Union

To date, two decisions are scheduled for publication in October in relation to EU private international law instruments. Both will be known on Friday 4.

The first one is C- 633/22, Real Madrid Club de Fútbol, a Grand Chamber decision on Regulation 44/2001 (T. von Danwitz as reporting judge).

As reported here, the dispute on the merits revolves around a Spanish decision sentencing the newspaper Le Monde and one of its journalists to pay damages to Real Madrid and to AE, a member of its medical team, for damage to their reputation. Real Madrid and AE asked for the recognition and enforcement of the decision in France; the Paris Court of Appeal refused. Seized on cassation, the French Cour de Cassation decided to refer to the Court of Justice a series of questions relating to the reason for refusal of recognition based on public policy (Article 34, point 1, of the Brussels I Regulation), read in the light of Article 11 of the Charter of Fundamental Rights of the EU:

1) Must Articles 34 and 36 of the [Brussels I] regulation and Article 11 of the Charter of Fundamental Rights of the European Union be interpreted as meaning that a financial penalty imposed for harm caused to the reputation of a sports club by the publication of a story in a newspaper can manifestly infringe freedom of expression and therefore constitute a ground for refusing to recognise and enforce a judgment?

2) In the event of an affirmative answer, must those provisions be interpreted as meaning that the court in which enforcement is sought may find that the penalty is disproportionate only where the damages have been categorised as punitive either by the court of origin or by the court in which enforcement is sought and not where they have been awarded as compensation for non-material damage?

3) Must those provisions be interpreted as meaning that the court in which enforcement is sought may take account only of the deterrent effect of the penalty in the light of the resources of the person on whom the penalty is imposed, or may it have regard to other factors such as the seriousness of the wrong or the extent of the harm?

4) Can the deterrent effect in the light of the resources of the newspaper in itself form a ground for refusing to recognise and enforce a judgment due to a manifest infringement of the fundamental principle of freedom of the press?

5) Must the deterrent effect be understood as meaning that the financial stability of the newspaper is threatened or may it simply refer to an intimidating effect?

6) Must the deterrent effect on the newspaper publishing house and on a journalist as an individual be assessed in the same way?

7) Is the general economic situation of the print media a relevant factor when assessing whether, beyond the newspaper in question, the penalty is likely to have an intimidating effect on the media overall?

AG M. Szpunar delivered his opinion last February. In his view, Article 45(1) of the Brussels I Regulation, read in conjunction with Article 34(1) and Article 45(2) thereof, and Article 11 of the Charter of Fundamental Rights of the European Union, must be interpreted as meaning that

A Member State in which enforcement is sought of a judgment given in another Member State, concerning a financial penalty imposed on a newspaper publishing house and a journalist for harm caused to the reputation of a sports club and a member of its medical team by the publication of a story in that newspaper, must refuse or revoke a declaration of enforceability of that judgment where enforcement of that judgment would give rise to a manifest breach of the freedom of expression guaranteed in Article 11 of the Charter.

Such a breach exists where enforcement of the judgment gives rise to a potential deterrent effect in respect of involvement in the debate on a matter of public interest both of the persons on whom the penalty is imposed and of other media companies and journalists in the Member State in which enforcement is sought. Such potential deterrent effect occurs where the overall sum the payment of which is claimed is manifestly unreasonable having regard to the nature and the economic situation of the person concerned. In the case of a journalist, the potential deterrent effect occurs in particular where that sum is several dozen times the standard minimum salary in the Member State in which enforcement is sought. In the case of a newspaper publishing house, the potential deterrent effect must be understood as a manifest threat to the financial stability of that newspaper. The court of the Member State in which enforcement is sought may take account of the seriousness of the wrong and the extent of the harm only in determining whether, even though the overall sum of a penalty is a priori manifestly unreasonable, it is appropriate for counteracting the effects of defamatory statements.

The second decision to be delivered on October 4 is C-494/23, Mahá. The Nejvyšší soud (Czech Republic) had referred to the Court of Justice two questions on the interpretation of Regulation Brussels I bis:

1. Must Article 1(1) of [the Brussels I bis Regulation] be interpreted as meaning that the proceedings concerning the substitution of the defendant’s consent to the release of an item from judicial custody, which are proceedings incidental to proceedings on judicial custody commenced with the deposit in such custody of an item seized by law enforcement authorities, fall under the concept of ‘civil and commercial matters’ within the meaning of that provision?
2. Should the first question be answered in the affirmative, must Article 8, point 2, of [the Brussels I bis Regulation] be interpreted as meaning that an application for the substitution of consent to the release of an item from judicial custody filed by one of the parties to the judicial custody proceedings concerning that item, against another party to those judicial custody proceedings, constitutes an application [in proceedings] as provided for in the provision concerned?

The dispute before the national court concerns a vehicle put under judicial custody in the Czech Republic by a law-enforcement authority once it was no longer required for the purposes of criminal proceedings. The owners of the vehicle, which was purchased in Germany, are asking for its release; however, other persons had claimed a right to the vehicle in previous proceedings. In such circumstances, according to the laws of the Czech Republic the release of the object requires consent of all of the persons concerned, or the substitution of said consent by a court ruling. The applicants filed an application against defendants resident in France for the substitution of their consent to the release of the item from custody. The defendants did not attend the proceedings. In connection with the defendants’ failure to appear, the court of first instance declared its lack of international jurisdiction; the decision was upheld on appeal. Both courts considered that the dispute concerns a purely civil claim, and that jurisdiction of a Czech court could be based only on Article 26(1) of the Brussels I Regulation. The applicants filed an appeal in cassation with the Nejvyšší soud (Supreme Court, Czech Republic).

The case has been decided by a chamber of three judges, with Judge F. Biltgen reporting. An opinion was not requested.

Finally, although not directly focused on the interpretation of EU rules of private international law, I would like to call your attention to two events. The first one is the hearing taking place on Tuesday 1 in case C-600/23, Royal Football Club Seraing, where the Belgium Cour de Cassation is asking the following:

1. Does Article 19(1) of the Treaty on European Union, read in conjunction with Article 267 of the Treaty on the Functioning of the European Union and Article 47 of the Charter of Fundamental Rights of the European Union, preclude the application of provisions of national law such as Article 24 and Article 171[3](9) of the Code judiciaire (Belgian Judicial Code), laying down the principle of res judicata, to an arbitral award the conformity of which with EU law has been reviewed by a court of a State that is not a Member State of the European Union, which is not permitted to refer a question to the Court of Justice of the European Union for a preliminary ruling?
2. Does Article 19(1) of the Treaty on European Union, read in conjunction with Article 267 of the Treaty on the Functioning of the European Union and Article 47 of the Charter of Fundamental Rights of the European Union, preclude the application of a rule of national law according probative value vis-à-vis third parties, subject to evidence to the contrary which it is for them to adduce, to an arbitral award the conformity of which with EU law has been reviewed by a court of a State that is not a Member State of the European Union, which is not permitted to refer a question to the Court of Justice of the European Union for a preliminary ruling?

The dispute on the merits concerns an action brought by Royal Football Club Seraing against the Fédération Internationale de Football Association (FIFA), the Union européenne des Sociétés de Football Association (UEFA) and the Union Royale Belge des Sociétés de Football-Association (Royal Belgian Football Association; ‘the URBSFA’) seeking, in essence, a declaration that FIFA’s rules providing for a prohibition of the third-party ownership of players’ economic rights (practices known as ‘third-party ownership’ or ‘third-party investment’) are unlawful under EU law. That action also seeks damages to compensate for the harm allegedly suffered by Royal Football Club Seraing as a result of the application of that prohibition. At the same time, the FIFA Disciplinary Committee imposed on Royal Football Club Seraing disciplinary measures which were confirmed by an award of the Tribunal Arbitral du Sport (Court of Arbitration for Sport, Switzerland), which was upheld by the Tribunal fédérale (Federal Tribunal, Switzerland).

The case will be decided by the Grand Chamber with J. Passer acting reporting. AG T. Ćapeta will deliver her opinion in due time.

The second event worth mentioning relates to case C-4/23, Mirin. Here, the Court of Justice is asked to assess the refusal of the recognition in one Member State of a change of gender obtained in another Member State by a national of both States, in light of the right to move and reside freely within the Union – Article 21 TFEU, Article 45 of the Charter of Fundamental Rights – and the right of respect for private and family life – Article 7 of the Charter.

AG J. Richard de la Tour delivered his opinion on May 7; it has been commented in the EAPIL blog by Helga Luku. The judgment will be a Grand Chamber, with President K. Lenaerts acting as reporting judge.

On a side note, I would like to recall that a partial renewal of the members of the Court of Justice – judges and advocate general – is also taking place this month.