French Supreme Court Rules after Preliminary Ruling in Real Madrid v Le Monde
This post was contributed by Fabien Marchadier, who is a professor of private international law at the University of Poitiers.
On 28 May 2025, the Cour de cassation delivered its judgment in Real Madrid Club de Fútbol v. Société éditrice Le Monde following the preliminary ruling by the Court of Justice of the European Union (Case C-633/22, reported on this blog). By its judgment (covered by Geert Van Calster in his blog), the French Supreme Court quashed the appeal ruling which refused to enforce the Spanish judgments on several grounds. Drawing conclusions from the ruling of the CJEU, the Court of Cassation found, unsurprisingly, that in reviewing the Spanish decision, the Court of Appeal had exceeded its powers by making several prohibited substantive revisions.
Background
Following the publication of an allegedly defamatory article, Real Madrid Football Club and one of its medical team members had brought an action against the newspaper Le Monde and one of its journalists before the Spanish courts. In two final judgments, they were awarded substantial damages for non-pecuniary loss (EUR 300,000 in principal for the club and EUR 30,000 in principal for the member of its medical team).
With a view to enforcement in France, they sought and obtained two declarations of enforceability of the Spanish decisions from the directeur des services de greffe judiciaires of Paris first instance court following a summary examination, in accordance with the Brussels I Regulation No. 44/2000 then applicable.
The Court of Appeal overturned these declarations, considering that the Spanish decisions violated the freedom of the press protected under the right to freedom of expression (Article 11 of the Charter of Fundamental Rights of the European Union and Article 10 of the European Convention on Human Rights) and were therefore contrary to French public policy.
On appeal by the applicants, the Court of Cassation referred several questions to the CJEU for a preliminary ruling. On 4 October 2024, the Court delivered an ambiguous judgment (Advocate General Chaumont, in his opinion, sees it rather as “a decision striking a balance between the requirement of mutual trust in the justice system within the European Union and that of protecting freedom of expression”).
The CJEU does not rule out a refusal of recognition, at least in part, if the amount of damages is manifestly disproportionate to the damage to reputation, such that it is likely to have a deterrent effect on the exercise of press freedom in the requested State. The Court of Justice does not rule clearly on this point and leaves it to the national courts to decide. However, they do not enjoy complete freedom. The Court of Justice subjects them to significant methodological constraints. These constraints are based, for the most part, on the principle of prohibition of review of the merits in a context of mutual trust.
Judgment of the Court of Cassation
The ruling handed down by the Court of Cassation reflects these ambiguities and constraints. It first confirms the very principle of reviewing the proportionality of a financial penalty, whether compensatory or punitive. It then confirms that the parameters of proportionality include the extent of the offender’s resources. From this twofold perspective, the appeal judgment referred to the Court of Cassation is not open to criticism.
However, by disregarding the fault committed by the perpetrator, as assessed in terms of its nature and seriousness by the Spanish court, and by failing to establish, even by way of a reference value (such as the average remuneration of journalists in the sector concerned; on the contrary, the net loss and the liquid assets do not sufficiently establish the press publisher’s financial resources ), the extent of the debtors’ assets, the Court of Cassation rules that the Court of Appeal failed to apply the methodology for reviewing the proportionality of the amount of damages awarded by the Spanish courts. Furthermore, although this may seem obvious, where there are several convictions against different persons, the disproportionate nature of the sentence must be assessed in relation to each of them, taking into account their particular circumstances, in particular their financial situation, and not globally, taking all sentences together.
Finally, in carrying out this review, the Court of Cassation can only note the discrepancy between the judgment delivered by the Court of Appeal and the guidelines laid down by the Court of Justice in its preliminary ruling. By re-examining the assessment of the damage and the seriousness of the fault committed, the Court of Appeal violated the principle of prohibition lof review on the merits (revision au fond). It is bound not only by the findings of fact of the Spanish courts, but also by the conclusions drawn from them. It is irrelevant that the member of the medical team was not named in the article or in the denial published by the Spanish press. Nor are the difficulties in quantifying the non-pecuniary damage relevant. The Spanish court did not ignore these factors when it set the amount of damages. They form an integral part of the judgment. They do not allow for an assessment of their manifest disproportion.
Next Step
The Court of Cassation allows the appeal on five different grounds and refers the case back to a different panel of the Paris Court of Appeal. The judgment of the Court of Cassation gives methodological reminders which do not prejudge the outcome of the proportionality review. It will therefore be for the trial judge to distinguish clearly between the case of a legal person and that of a natural person and not to deviate from the “narrow path” (to use the expression of Advocate General Chaumont) laid down by the Court of Justice. It will also have to establish the resources of the debtors in order to assess in concrete terms whether the amount of damages is substantial for each of the debtors, to the extent that it threatens the economic foundations of Le Monde. If the Court of Appeal upholds its decision not to recognize the Spanish decisions, it will have to meet two challenges.
In order to remain within the limits of the review authorized by the Court of Justice, it would have to find that the Spanish decisions constitute not a mere violation of the right to freedom of expression, but a manifest violation, without revisiting the assessment of the damage or the seriousness of the fault.
In other words, the review of the international regularity of the foreign decision is not an opportunity to reopen the proceedings that took place abroad. It must focus on elements that have not already been examined by the court of the State of origin of the decision. However, it appears that in balancing the interests at stake (the protection of reputation on the one hand and the exercise of freedom of the press on the other), the Spanish court did not fully comply with the case law of the European Court of Human Rights. It set the amount of damages in consideration of the fault and the harm, but without concern for the weight of this sentence on the debtors and, for the newspaper, the practical consequences of such a debt for the continuation of its activity. Does this methodological failure in itself amount to a clear violation of freedom of expression? If not, it will depend on an assessment of the resources of the journalist and Le Monde. If these resources are insufficient to the point of making the sentence clearly disproportionate (which remains to be demonstrated), the referring court will face a second challenge.
Traditionally, when a foreign decision is subject to a ground for non-recognition, it has no effect (or almost no effect, as there are effects independent of the international regularity of a decision) in the requested State. The alternative is binary.
In its preliminary ruling, the Court of Justice decided to break new ground. In order to minimize the impact on the objective of free movement of decisions, it opened up a third possibility. Despite the violation of public policy, despite the clear violation of a fundamental right, in this case freedom of expression, the decision is still intended to circulate. The award of damages, which gave rise to the violation of the fundamental right, should be reduced to the extent that it is manifestly disproportionate. The prohibition of review of the merits and the principle of mutual trust, which are so decisive in limiting the powers of review of the court of the requested State, are neutralized here. Their importance varies in the service of a single end: the free movement of judgments in Europe. From a theoretical point of view, the reasons put forward in support of this solution are reasonably convincing.
However, this solution poses a formidable practical problem that the Court of Cassation, which only reviews errors of law, has obviously not addressed. How can manifest disproportion be assessed in concrete terms? Is it sufficient to establish the point at which the infringement of freedom of expression is no longer justified? If the purpose of the review is to remove the manifest nature of the violation, without necessarily eliminating the violation itself, how can a distinction be made between what is debatable (damages in a substantial amount) and what is unacceptable (damages in a manifestly disproportionate amount)? In this regard, Advocate General Chaumont considers that cassation will give the referring court the opportunity “to decide the issue with greater nuance”.
Leaving the trial judge with broad discretion, with the Court of Cassation’s review limited to the existence of sufficient reasoning is a solution. This point remains to be clarified.