The end does (not) justify the means: Mutual trust and fundamental rights safeguards after the ECJ’s Real Madrid judgment

Abstract

In the Real Madrid case, the Court was asked if a domestic court could rely on the public policy exception to refuse the execution of a judgment that could give rise to a manifest breach of the freedom of the press. The first analyses of the judgment predominately look at it from the angle of freedom of expression and freedom of the press, often framing the case as one of the first instances of the Court of Justice dealing with so-called SLAPP suits. Yet the Real Madrid judgment is also of fundamental importance from a different, more constitutional point of view. This case note will focus on two separate but related points. First, we will discuss the case in light of the delicate balance between the prohibition of substantive review of other Member States courts’ judgments and effective public policy control. Second, we will broaden the perspective and place this case in a larger development that has been taking place in the European legal space, in which tension is building between the application of the principle of mutual trust on the one hand, and the respect for the Union’s founding values, including fundamental rights, on the other.