Freedom of the Press as a Public Policy Reason Restricting the Principle of Mutual Trust: Lessons from the Real Madrid Preliminary Ruling

In the Real Madrid case, the Court prioritized under the public policy proviso of the Brussels I Regulation the protection of freedom of the press over the mutual recognition of judgments in civil and commer-cial matters. The preliminary ruling explains the circumstances in which recourse to public policy is pos-sible to decline the enforcement of a foreign judgment ordering damages for harm done to reputation as a result of publication of information on a matter of public interest. The criteria that it employs in this respect are however difficult to reconcile with the obligation imposed by the Brussels I Regulation not to review the substance of the foreign judgment. At the same time, this case underlines the comple-mentarity of the legal protection that has been made now available to persons engaged in public partic-ipation under the public policy clause and the new Anti-SLAPP Directive in the member state of origin and the member state of enforcement of the judgment. Looking beyond freedom of expression, an important question is whether this case could have a spillover effect in other areas characterized by the application of legal instruments based on the principle of mutual trust and in particular whether it could introduce an exception to the operation of this principle whenever there can be ascertained a manifest risk of breach of a fundamental right regardless of the existence of systemic deficiencies in the general level of protection of that right in the member state concerned.