German Supreme Court refuses to enforce Polish judgment for violation of the German ordre public
It doesn’t happen too often that a Member State refuses enforcement of a judgment rendered in another Member State for violation of the ordre public. But in a decision published yesterday exactly this happened: The German Supreme Court (Bundesgerichtshof – BGH) refused to recognize and enforce a Polish judgment under the Brussels I Regulation (before the recast) arguing that enforcement would violate the German public policy, notable freedom of speech and freedom of the press as embodied in the German Constitution. With this decision, the highest German court adds to the already difficult debate about atrocities committed by Germans in Poland during WW II.
The facts of the case were as follows:
In 2013, the ZDF (Zweites Deutsches Fernsehen), one of Germany’s main public-service television broadcaster, announced the broadcasting of a documentary about the liberation of the concentration camps Ohrdruf, Buchenwald and Dachau. In the announcement, the camps Majdanek and Auschwitz were described as “Polish extermination camps”. Following a complaint by the Embassy of the Republic of Poland in Berlin, the ZDF changed the text of the announcement to “German extermination camps on Polish territory”. At the same time, the applicant, a Polish citizen and former prisoner of the Auschwitz-Birkenau and Flossenbürg concentration camps, complained to the ZDF claiming that his personal rights had been violated and demanded, among other things, the publication of an apology.
In 2013, the ZDF apologized to the applicant in two letters and expressed its regret. In spring 2016 it also published a correction message expressing its regret for the “careless, false and erroneous wording” and apologising to all people whose feelings had been hurt as a result. At the end of 2016, on the basis of an action he had brought in Poland in 2014, the applicant obtained a second instance judgment of the Cracow Court of Appeal requiring the ZDF to publish an apology on the home page of its website (not just anywhere on the website) for a period of one month expressing its regrets that the announcement from 2013 contained “incorrect wording distorting the history of the Polish people”. The ZDF published the text of the judgment on its home page from December 2016 to January 2017, however, only via a link. The applicant considered this publication to be inadequate and, therefore, sought to have the Polish judgment enforced in Germany.
The Regional Court Mainz as well as the Court of Appeal Koblenz declared the judgment enforceable under the Brussels I Regulation (Reg. 44/2001). The German Federal Supreme Court, however, disagreed. Referring to Article 45 Brussels I Regulation, the Court held that enforcement of the judgment would result in a violation of the German ordre public because the exercise of state power to publish the text of the judgment prepared by the Cracow Court of Appeal would clearly violate the defendant’s right to freedom of speech and freedom of press as embodied in Article 5(1) of the German Constitution (Grundgesetz – GG) as well as the constitutional principle of proportionality.
The Court clarified that the dispute at hand did not concern the defendant’s original announcement – which was incorrect and, therefore, did not enjoy the protection of Article 5(1) GG – but only the requested publication of pre-formulated text. This text – which the ZDF, according to the Cracow court, had to make as its own statement – represented an expression of opinion. It required the ZDF to regret the use of “incorrect wording distorting the history of the Polish people” and to apologize to the applicant for the violation of his personal rights, in particular his national identity (sense of belonging to the Polish people) and his national dignity. To require the ZDF to published a text drafted by someone else as its own opinion would, therefore, violate the ZDF’s fundamental rights under Article 5(1) GG. In addition, it would violate the constitutional principle of proportionality. The defendant had corrected the disputed wording “Polish concentration camps”, which had been available for four days, on the day of the objection by the Embassy of the Republic of Poland. Even before the decision of the Court of Appeal, the ZDF had personally asked the applicant for an apology in two letters and also published an explanatory correction message with a request for apology addressed to all those concerned.
The official press release is available here. The full German decision can be downloaded here.
The really interesting question regarding the decision of the Bundesgerichtshof (BGH) would be the following: was the court right or wrong in declining recognition?
Frankly spoken, I’m not convinced by the decision. Of course, the text – which the ZDF, according to the Cracow court, had to make as its own statement – represented a so-called expression of opinion and was not permissible under German constitutional law: Requiring the ZDF-television to making this expression its own would have amounted to an infringement of the freedom of speech as guaranteed by article 5 of the Constitution.
However, it corresponds to well settled principles of the recognition of judgments to substitute the operative part of the foreign judgment by a formula which comes close to it. This (positive) option is totally missing in the formalistic judgment of the Federal Civil Court. In this respect I’m wondering why the BGH did not simply order that the operative part of the Polish judgment as such was declared enforceable. My proposed wording of a declaration of enforceability would be drafted as follows : “According to the judgment of the Appellate Court of Krakow the ZDF is required to publish the following decision:…”
This solution would have solved the problem: No constitutional conflict would have arisen and the political issues would have been mitigated. Seen from that perspective, the judgment appears as a missed opportunity.
Btw: The ILA Committee on the protection of privacy in private international and procedural law is addressing these issues in a comparative perspective. It just met today in Sydney to discuss its draft recommendations in this field. The pertinent texts are available at the MPI’s website. Don’t miss the opportunity to visit it and to comment on its work.
Funny – German courts defending freedom of speech???
Germany is very restrictive of “Unpopular Speech” – and many people are in prison as a result.
I would like to approach the ruling from a different angle:
Assuming that there is a higher instance than the Cracow court (Polish readers might want to verify that), I seem to miss any reference to the omission of ZDF to make use of a second appeal.
In the Diageo case (C-681/13), the Court stated the following:
…Regulation No 44/2001 must be interpreted as being based on the fundamental idea that individuals are required, in principle, to use all the legal remedies made available by the law of the Member State of origin. As the Advocate General has observed in point 64 of his Opinion, save where specific circumstances make it too difficult or impossible to make use of the legal remedies in the Member State of origin, the individuals concerned must avail themselves of all the legal remedies available in that Member State with a view to preventing a breach of public policy before it occurs. That rule is all the more justified where the alleged breach of public policy stems, as in the main proceedings, from an alleged infringement of EU law [Recital 64].
When determining whether there is a manifest breach of public policy in the State in which recognition is sought, the court of that State must take account of the fact that, save where specific circumstances make it too difficult, or impossible, to make use of the legal remedies in the Member State of origin, the individuals concerned must avail themselves of all the legal remedies available in that Member State with a view to preventing such a breach before it occurs [Recital 68].
There is not a word in the ruling about the Diageo judgment of the CJEU.
Notwithstanding the above, I have the feeling that ZDF demonstrated its willingness to abide by the Polish decision; that is probably the reason why it did not wish to challenge it. Presumably it did not count with the persistence of the applicant. The question is whether this makes a difference in respect to the Diageo conclusions.
In any case, technically speaking, I presume that ZDF had the chance to file a further appeal before the Polish Supreme Court. If so, it could also bring forward the freedom of expression argument as a public policy component. The matter has both national and EU ramifications: It is not just an issue for the German fundamental law; it is also embedded in the ECHR (Art. 10) and the Charter of Fundamental Rights (Art. 11).
Thanks for that interesting post and ruling , but we couldn’t really understand the ruling . All what we could understand it seems ,is that it is contradicting the public order policy ( based upon article 5 ( 1 ) to the constitution ). But , that article , beyond freedom of expression , dictates also , respecting the honor of a person , here I quote , and first Article 5(1) :
1. Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures, and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of reporting by means of broadcasts and films shall be guaranteed. There shall be no censorship.
2. These rights shall find their limits in the provisions of general laws, in provisions for the protection of young persons, and in the right to personal honour.
End of quotation :
So , it should be balanced with the honor of that Polish citizen or plaintiff. No balance of such , has been presented , that is to say :
Why freedom of speech , had to take over and prevail in this case , over his honor ??
@Apostolos Anthimos – the judgment of Cracow’s court is indeed a judgment of the court of second instance. Facts of those proceedings are as follows. Court of first instance in Cracow dismissed the claim in 2016 so the claimant appealed to the court of appeal in Cracow that issued the judgment ordering ZDF to apology. Judgment of the court of appeal as the court of second instance is binding, so ZDF cannot appeal. However ZDF submitted cassation complaint to the Polish Supreme Court, which is an extraordinary remedy and does not affect the binding power and enforcement of the judgment. The case is accepted by the Supreme Court and now awaits hearing. Attorney of the claimant told today that they want to ask Supreme Court to send preliminary question to the CJEU whether ordering a newspaper to apology as Court of Appeal did is in accordance with EU law (whatever it means, we don’t know the details of this concept now).
BTW, in Poland judgments ordering apology and specifying exact content thereof including details like apology should be published on the first/second page of nationwide journal in box 10 x 15 cm on the top are standard. Many of such judgment are issued against tabloids that usually don’t want to apology to the claimants or if they do – they make it in a manner that is also insulting. Being precise in the ratio decendi allows claimant to order publication of such apology and charge the stubborn defendant with the costs of publication. I have never seen anyone appealing such judgment for violating free speech.
For me as Polish lawyer it’s quite surprising that we have 2018 and this is first judgment of German court that challenges enforceability of absolutely typical Polish judgment ordering apology in the case concerning violation of personality rights (really, no one has ever been enforcing such order in Germany before? or sb has but no one questioned enforceability?).
I can only confirm what Silwia wrote. It is indeed a standard procedural solution in Poland. Usually the defendant who complies with such a court decision would anyway point out that the publishing of the apology is a result of a certain court decision. So “making it as an own statement” is relative. The real purpose is precising the way the apology should take place – also in order to make it enforceable, if needed. The proportionality of the mean is being checked by the deciding court, as the Court of Appeal in Cracow has done in this case.
With respect to him, I am not so sure that Professor Hess’s suggestion offers a way out. Unless the foreign judgment is severable (is that a realistic way to describe it?) it has to be taken as a whole, as the German court did. If it is refused recognition, the ‘make an order which is the nearest equivalent’ approach, as part of the law of enforcement of judgments which qualify for recognition, does not arise. In a world of almost automatic enforcement, there is always a risk that the judgment will fail recognition despite the fact that a slightly different one would not have. The question is whether this judgment, not a different/similar judgment, is one to which recognition and enforcement extends. I would have thought that the German court applied the right approach; whether it got the right answer as a result of doing so is a matter of German law on which it is not possible to offer a view.
Unlike Professor Briggs, and with all respect, I do not see a problem with partial enforceability, if the public policy exception indeed applies. What interests me now is the further development. Patria nostria lawyers standing behind the lawsuit are very persistent, as the case shows (since their aim is making anyone using the phrase “Polish death/concentration camps”, especially the media, think twice). They will look for a way to convince the Polish Supreme Court to file a preliminary question aimed at a ECJ ruling. If they find the right way, I do not think the ECJ shares the point of view expressed by the BGH. Not on German law. And the really interesting question would be: what happens in procedural terms then?
Looking forward to further development and all case-notes.
A short reply to A. Briggs (and I note that this is not the first time we are disagreeing on issues of EU procedural law). My point here does not go to severability and/or partial recognition of a foreign judgment incompatible with public policy. What I propose instead is to consider an implementation or an adaptation of the Polish judgment in order to permit its enforcement in Germany as foreseen, for instance, by the new article 54 of the Brussels Ibis Regulation. This implementation mechanism is also inherent to the (traditional) exequatur proceedings where the requested court may adapt the foreign decision to the specificities of enforcement law in the requested state (cf. Hess, Europäisches Zivilprozessrecht (2010), § 3 no 14). Just to avoid further misunderstandings: it does not amount to a revision au fond.
Of course, this case does not relate to an “unknown” foreign measure or order (in the sense of –again- article 54 Reg. Brussels Ibis), as German constitutional law does not allow the enforcement of a judgment ordering someone to make a specific pre-formulated text his or her own opinion. But the case at hand is similar to this constellation. Furthermore, the possibility to publish a reply is recognized in German law. Accordingly, my proposal is that the German court ordering the recognition of the judgment clarifies in the decision on exequatur that the publication of the declaration (as prescribed by the Polish judgment) was ordered by the Krakow court. This clarification would open up a possible and permitted way of enforcing the Polish judgment in Germany as the declaration would no longer appear as a personal statement of the German party. There is no need to take recourse to a formalistic approach as the doctrine of severability.
The implementation and adaptation of the foreign judgment to the enforcement structures of the requested EU-Member state also corresponds to the fundamental approach of European procedural law: It is based on the freedom of movement of judicial decisions, which are enforced in the cross-border context in a cooperative way.
I yield to none in my respect for Professor Hess on issues like this. I do not doubt that if the only material point were that the foreign judgment is of a kind which a German court could not make under its own law, the procedure in Art 54 is applicable and desirable: a precursor of this justified the making of orders which reflected English injunctive relief which a court in another Member State could not have made within its own domestic law. That, though, does not appear (I make plain that I cannot interpret the judgment of the BGH accurately enough to speak with authority) to be the case here: the content of the foreign judgment was opposed to German public policy which does not allow words to be forced into the mouth of another. If that is so, I cannot see that Art 54 is to the point: the Polish order was not unknown to, but was in conflict with the policy of, German law. If that is so, the question was not one one how to implement a judgment of a kind with which we have no problem but which does not quite fit into our procedural framework, but whether anything can be done with a judgment whose content, as appears, offends our public policy. The answer to that, as it seems to me, is no: until the public policy objection is removed from the Regulation – which the Member States have refused to agree to – it means pretty much what the BGH said it meant. In the end, I see no problem with the publication of a news story which reports that X has been ordered by a court in Poland to do this or that; I see real problems with a judicial instruction to do something which offends German public policy, whether preceded by the proposed explanation or otherwise.