An Advocate General at the EU’s highest court has said that a “manifest breach” of the principle of press freedom may be a ground for a court in one member state to refuse to enforce the judgment of a court in another.

Maciej Szpunar’s opinion followed a referral from a French court in a case involving the newspaper Le Monde and Spanish football club Real Madrid.

Almost ten years ago, the Spanish courts ordered the newspaper’s parent company and one of its journalists to pay a penalty for the publication, in 2006, of an article claiming that there were links between the football club and Dr Fuentès, the head of a doping ring in the cycling world.

Deterrent effect

Ruling that the article was defamatory and harmed the club’s reputation, the Spanish courts ordered the company to pay damages of €390,000, and the company and its journalist to pay €33,000.

Real Madrid applied for enforcement of those Spanish judgments in France but, in 2020, the Paris Court of Appeal dismissed its application, citing a public-policy clause.

The Paris court found that the penalty had a deterrent effect on the involvement of journalists and media organisations in the public discussion of matters of community interest, thereby breaching freedom of the press and freedom of expression.

The French Court of Cassation then asked the Court of Justice of the European Union (CJEU) whether a breach of principle of press freedom guaranteed by the EU’s Charter of Fundamental Rights justified recourse to the public-policy clause.

‘Economic foundations’

In his opinion, First Advocate General Szpunar said that a member state, in such a case, “must refuse or revoke enforcement where it would give rise to a manifest breach of freedom of expression”.

He added that a court could have recourse to public policy where enforcing a judgment on compensatory damages was likely to have a deterrent effect on press freedom in the country concerned.

Szpunar stated that the amount of damages that media companies are ordered to pay “must not be such as to threaten their economic foundations”, while the amount for individuals must be considered manifestly unreasonable “where that person would have to struggle for years to pay it in full”.

The Advocate General described the freedom of the press is “an essential principle of the EU legal order”.

His opinion is not binding on the court, which will give its judgment at a later date.