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The issue of limits to national ordre public in non-recognition of judgements in Europen Union

2021.05.20. @ 10:00 - 12:00

On 20th of May the speech was given by Dr hab. Piotr Mostowik, assist. prof. and member of Central European Professors’ Network 2021 coordinated by the Ferenc Mádl Institute of Comparative Law.

The topic was focused on the ordre public (public policy) clause as ground of non-enforcement of foreign judgment in civil matters.

This event was held online as part of the International Congress of Civil Procedural Law.

This conference brought together researchers and professionals who, through their scientific studies and practical experiences, could contribute to the analysis of the impact of global and digital sustainable development in matters of procedural law.

On May 20th the speech was given by Dr hab. Piotr Mostowik, assist. prof. and member of Central European Professors’ Network 2021 coordinated by the Ferenc Mádl Institute of Comparative Law. The topic was focused on the ordre public (public policy) clause as ground of non-enforcement of foreign judgement in civil matters. This event was held online as part of the International Congress of Civil Procedural Law. This conference brought together researchers and professionals who, through their scientific studies and practical experiences, could contribute to the analysis of the impact of global and digital sustainable development in matters of procedural law.

The speech covered the details of recent cases and the following legal topics: judicial cooperation in civil matters, Brussels I and II EU regulations, recognition and enforcement of foreign judgements, international civil procedure content of ordre public, European Convention on Human Rights standards, the solution applied in Germany called ‘negative aspect of freedom of opinion’, the issue of falsifying the history and infringement of personality rights.

Such legal instrument as ordre public clause is necessary even under automatic enforcement system under the Brussels I Recast Regulation. Under the abovementioned UE Regulations on judicial cooperation in civil cases, a judgment was given in a Member State (and enforceable in that state) in general shall be enforced in another Member State. The exceptions, that may cause non-enforcement, were – in relation to discussed cases – stipulated in Articles 45(1) and 34(1) of Brussels I Regulation. A judgment shall not be enforced or recognised, if it is manifestly contrary to public policy in the Member State in which the enforcement or recognition is sought. The same exception of public order applies on the basis of Articles 46 and 45 (1) (a) of Brussels I Recast Regulation. The public policy clause may apply only in exceptional cases of manifest breach of a rule of law regarded as essential in the legal order of the State in which enforcement is sought, or breach of a right recognised as being fundamental within that legal order.

However, the discussed Polish and German cases were not only of private law character but also regarded the public law standards of mass media and journalism. German Bundesgerichtshof in a judgement of 2018 stated inter alia: “The defendant is sentenced to adopt and publish as its own the opinion that the Polish court has got from the defendant’s statement. This clearly infringes the fundamental right of the defendant.” From the BGH’s point of view, the defendant was obliged to accept and submit in public as his own a statement that is not the clarification but an assessment (Bewertung) made by the Polish court. That – in its opinion – obviously violates the fundamental right resulting from the German Constitution. Some of these theses were evaluated as questionable. The wording of Art. 10 ECHR stresses that freedom of expression is of considerable importance but remains a limited and conditional right. In particular, freedom of the press is of cardinal importance in a democratic society but is not unlimited. Publishing some expressions or statements may render the person concerned civilly liable or even criminally punished in the case of defamation or insulting language.

The final remarks covered legal aspects of recent cases related to the content of electronic media, court rulings ordering to apologise and to publish dementi, and the enforcement of such sentence in another EU Member State. It was mainly focused on the exceptional non-enforcement of foreign judgment, as well as on recent case law and reasoning studies. The functioning of this clause under Brussels I EU Regulations was evaluated in intra-EU relations and infringement of personality rights, in particular from the perspective of freedom of opinion stipulated in national constitutions (with Polish and German examples) and in the European Convention of Human Rights.

At the end of this session of the congress, the discussion with participants returned to the topic of the relationship between civil proceedings and the jurisprudence of the European Court of Human Rights, and in particular the reopening of domestic civil proceedings as the consequence of a ruling of this tribunal in an individual case.

The presentation of the congress can be found here.

 

The video of the event can be found here

Details

Date:
2021.05.20.
Time:
10:00 - 12:00

Venue

Webinar Conference