Ordre public and non-enforcement of judgments in intra-EU civil matters: remarks on some recent Polish-German cases

• Published in: Journal of private international law 2022-05, Vol.18 (2), p.317-336
• Main Authors: Mostowik, Piotr, Figura-Góralczyk, Edyta
• Format: Article
• Language: English
• Subjects: Brussels I and Ia Regulations; Civil rights; Constitutional law; Constitutional rights; Enforcement; falsifying history; Infringement; infringement of personality rights; international civil procedure; International law; Judgments; Judgments, Foreign; Judicial cooperation in civil matters; Jurisdiction; negative aspect of freedom of expression/opinion; ordre public, European Convention on Human Rights; Public policy; Public policy (Law); recognition and enforcement of foreign judgments; Social aspects; State court decisions; Supreme courts
• ISSN: 1744-1048; 1757-8418
• DOI: 10.1080/17441048.2022.2097214

The article discusses the enforcement of foreign judgments within the European Union and the public policy (ordre public) exception. It is mainly focused on some recent judgments of Polish and German courts. On 22nd December 2016 and 23rd of March 2021 rulings in cases of infringement of personality rights were issued by the Court of Appeal in Cracow (ordering an apology and correction). The enforcement of the former ruling was dismissed by the German Supreme Court (Bundesgerichtshof, BGH) (IX ZB 10/18) on 19th July 2018. The non-enforcement was justified by invoking German ordre public and "freedom of opinion" as a constitutional right stipulated in Article 5 of the German Constitution (Grundgesetz). A reference to the CJEU ruling of 17 June 2021 is also presented. After presenting the issue of ordre public in the context of enforcement of foreign judgments within the EU, the authors evaluate as questionable the argumentation of the BGH in its 2018 judgment. The Polish ruling ordering the defendant to correct and apologise for the false statement was included by the BGH in the category of "opinion" (Meinung) protected by the German Constitution. Enforcement of the judgment of the Polish court in Germany was held to be contrary to this German constitutional right and the enforceability of the Polish judgment was denied as being manifestly contrary to German public policy. The authors support the functioning of the ordre public clause in intra-EU relations. It is justified inter alia by the large differences in EU legal systems and future possible changes. However, the common standards of the ECHR should be particularly taken into consideration when applying the public policy clause, because they co-shape the EU legal systems.