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The Public Policy Exception in Private International Law: Necessary National

Safeguard or Superfluous due to Harmonization?

Thesis · June 2023

DOI: 10.13140/RG.2.2.32206.43844

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International and European Law
Eva Susanna Saring (S4467264)
Prof. Mathijs ten Wolde
04/06/2023

The Public Policy Exception in Private International Law:

Necessary National Safeguard or Superfluous due to Harmonization?

Eva Susanna Saring

LLB thesis
Word Count: 9985

Keywords: public policy exception, private international law, Europeanization

1
Table of contents

Introduction ........................................................................................................................................... 4
Chapter 1 The public policy exception in EU private international law .......................................... 5
1.1 Delineation of the notion of ordre public.................................................................................... 5
1.1.1 Ordre public, public policy, and public order......................................................................... 5
1.1.2 Facets of ordre public ................................................................................................................ 6
1.1.3 Content of a national public policy ......................................................................................... 7
1.2. The public policy exception ....................................................................................................... 8
1.2.1 Birth and development of the public policy exception in EU private international law .... 8
1.2.2 Rationale behind the public policy exception......................................................................... 9
Chapter 2 European Union and (its) ordre public .............................................................................. 9
2.1. ECJ case law on the public policy exception in private international law ............................ 9
2.1.1 Hoffman v Krieg ........................................................................................................................ 9
2.1.2 Krombach v Bamberski ........................................................................................................... 10
2.1.3 Renault v Maxicar ................................................................................................................... 11
2.1.4 Gambazzi v Daimler ................................................................................................................ 11
2.1.5 Diageo v Simiramida ............................................................................................................... 11
2.2. An own EU public policy (ordre public communautaire)?..................................................... 12
2.2.1 Considerations in the drafting of the exception in the Rome II Regulation ...................... 12
2.2.2 Possibility of a dogmatic Union public policy ...................................................................... 13
2.2.3 Different approaches in defining EU public policy ............................................................. 13
2.3. Interim conclusion regarding an EU public policy ............................................................... 14
2.3.1 ECJ case law on the contents of EU public policy ............................................................... 14
2.3.2 Other considerations not derived from ECJ case law ......................................................... 15
Chapter 3 Domestic ordres publics of the Member States ............................................................... 16
3.1. General sources of public policy ............................................................................................. 16
3.1.1 Shared sources of public policy ............................................................................................. 17
3.1.2 Individualization of sources of public policy........................................................................ 17
3.2. Sources of procedural and substantive public policy ............................................................ 18
3.2.1 Sources of procedural public policy ...................................................................................... 18
3.2.2 Sources of substantive public policy ..................................................................................... 18
3.3. Divergencies in procedural and substantive public policies ................................................. 19
3.3.1 Differences in procedural public policy ................................................................................ 19
3.3.2 Differences in substantive public policy ............................................................................... 21
Chapter 4 Harmonization of the domestic public policies and outlook.......................................... 22

2
 4.1. Types of influence ..................................................................................................................... 22
4.1.1 International influences on the ordre public ......................................................................... 22
4.1.2 Regional influences on the ordre public ................................................................................ 22
4.2. Harmonization of national public policies ............................................................................. 23
4.2.1 Harmonization of substantive ordre public and the example of punitive damages .......... 23
4.2.2 Harmonization of procedural ordre public and the possibility to appeal .......................... 24
4.3. Necessity of a public policy exception in today’s EU ............................................................. 24
4.3.1 Abolition considerations in the drafting of the Brussels Ibis Regulation .......................... 24
4.3.2 Current situation .................................................................................................................... 26
4.3.3 Possible future developments ................................................................................................ 27
Conclusion ............................................................................................................................................ 28
Statements ............................................................................................................................................ 29
Bibliography ........................................................................................................................................ 30
Appendix .............................................................................................................................................. 36

3
Introduction
Public policy, ordre public, ordine pubblico, öffentliche Ordnung, δημόσια τάξη – the heart of
a nation – perhaps the most domestic concept there exists; it will be the underlying idea for the
purpose of this thesis. Every single state has a distinct historical, political, economic, and social
landscape which contributes to the values inherent in each country’s legal system. It is therefore
a necessary corollary that states have a codified guarantee to give effect to their public policy
if they regard it as endangered. Time and time again, national courts have used this ordre public1
exception as a tool in private international law.
In the early stages of the then European Economic Community, the Treaty of Rome included
no legal basis for legislation in the field of private international law – and thus neither for a
public policy exception in this domain.2 This is somewhat surprising since supranational
relations evidently lead to an increase in cross-border cont(r)acts from which legal proceedings
can arise.3 Nevertheless, the Treaty of Rome did provide for the entering into negotiations to
simplify formalities as to the recognition and enforcement of judgments.4 Thus, the six original
Member States negotiated what was to become the 1968 Brussels Convention on jurisdiction
and the enforcement of judgments in civil and commercial matters, constituting the foundation
of the Brussels regime.5 Since then, the convention has been substituted by Regulation 44/2001
(Brussels I Regulation), and a further revision in 2012 resulted in the entry into force of the
Brussels Ibis Regulation.6 All three legal acts included an ordre public provision, which, if
invoked successfully, acts to bar the recognition and enforcement of a judgement originating in
another Member State. Similarly, it can also be invoked to exclude the application of foreign
law.7 The provision thus constitutes a domestic backstop to ensure adherence to domestic
fundamental values.8 It is ambiguous however, what exactly each national public policy entails,
especially considering the possible influence by external factors such as membership of the
European Union (hereinafter EU) or ratification of the European Convention on Human Rights
(hereinafter ECHR).
This gives rise to a number of considerations. Can a public policy, a concept inherently national,
even overlap with that of other countries? Can fundamental values and norms which form the
basic essence of a state be shared within or actually with the EU? The central question this
thesis aims to answer is the extent to which national public policies have been Europeanised to

1
The term ordre public coincides with the notion of public policy. The correlation between the terms will be
explained in further detail in Chapter 1 Section 1.1.
2
Treaty establishing the European Economic Community [1957] (Treaty of Rome).
3
Tim Corthaut, ‘EU ordre public’ (LL. D. thesis, Katholieke Universiteit Leuven 2009), 145.
4
Treaty of Rome, art 220.
5
Ronald Brand, ‘The European Union’s New Role in International Private Litigation’ (2005) 2(2) Loyola
University Chicago International Law Review 277, 281; Convention 1968 Brussels Convention on jurisdiction
and the enforcement of judgments in civil and commercial matters (EEC) [1968] OJ L299/32 (Brussels
Convention).
6
Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement
of judgments in civil and commercial matters [2001] OJ L12/1 (Brussels I Regulation); Regulation (EU)
No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the
recognition and enforcement of judgments in civil and commercial matters (recast) [2012] OJ L351/1 (Brussels
Ibis Regulation).
7
Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law
applicable to contractual obligations [2008] OJ L 177/6 (Rome I Regulation); Regulation (EC) No 864/2007 of the
European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations
[2007] OJ L199/40 (Rome II Regulation).
8
Brussels Convention, art 27(1); Brussels I Regulation, art 34(1); Brussels Ibis Regulation, art 45(1)(a).
4
render superfluous the necessity of a public policy exception in private international law,
especially in the realm of civil and commercial matters.
This thesis constitutes a legal-dogmatic research project. It focuses on analysing the existing
EU private international law legislation providing for a public policy exception, most notably
the Brussels regime, and the respective case law of the European Court of Justice (hereinafter
ECJ or Court). Furthermore, it shall deal with official and private expert reports on the use of
the exception by national courts which delineate the frequency of its invocation and the specific
subject matter of the domestic ordre public, thus, showcasing differences among the Member
States. Legal literature by leading academics in the field will be equally considered and directly
quoted if feasible. Specifically for the assessment of the national public policies, empirical legal
research will be employed to obtain an overview of the differences and similarities among them.
To this end, case law from the Member States will be reviewed on unalex and relevant
paragraphs translated.
The first chapter will provide an introduction to the topic and create a common ground of
understanding of the basic notions underlying the subject matter. The following part focuses on
the EU, the place of the public policy exception in its legal framework, and the existence of a
Union public policy. Subsequently, the Member States’ national public policies will be
delineated and compared to one another. The last chapter will analyse the way in which the
domestic ordres publics are influenced and the practical effects this has today and possibly in
the future.

Chapter 1 The public policy exception in EU private international law

1.1 Delineation of the notion of ordre public
The subject matter of the public policy exception in private international law first and foremost
warrants a clarification of the respective terminology. The reason for this is on the one hand the
use of French and English seemingly congruent notions and, on the other hand, the broad
concept of ordre public in and of itself.
1.1.1 Ordre public, public policy, and public order
In literature as well as secondary Union law9, the terms public policy and ordre public are often
used together or interchangeably.10 Taking the French term ordre public, this de facto translates
into English as either “public policy” or “public order”.11 Whereas a minority of academic
articles provide for the use of both English terms, “public policy” by far remains the prominent
option.12 This is arguably influenced by the official Union usage of this term rather than “public
order” in various regulations in the field.13

9
And notably as well in the Max Planck Encyclopaedia of International Law.
10
Rome I Regulation, art 21; Rome II Regulation, art 26; Brussels Ibis Regulation, art 45(1)(a). This is the case at
least since the entry into force of the Rome Regulations and in the Brussels Ibis Regulation. Before, no continuous
reference to ordre public was made.
11
Catherine Kessedjian, ‘Public order in European law’ (2007) 1 Erasmus Law Review 25, 26.
12
For examples of literature employing both English terms see Kessedjian (n 11) and Tomaž Keresteš, ‘Public
Policy in Brussels Regulation I: Yesterday, Today and Tomorrow’ (2016) 8(2) 77.
13
Brussels Ibis Regulation, art 45(1)(a); Rome I Regulation, art 21, Rome II Regulation, art 26.
5
Secondary Union Law, notably the Brussels Ibis Regulation, uses the terms public policy and
ordre public together whereby the latter follows the former in brackets. 14 In essence, one can
thus assume that public policy and ordre public refer to the same concept. For the sake of
coherence, the two terms will be used interchangeably in the following chapters. A preference
for the term ordre public is nevertheless understandable in the specific realm of European
private international law as ‘public policy’ is also utilised in other areas of law, for example in
the context of EU fundamental freedoms.15
1.1.2 Facets of ordre public
The meaning of the term ordre public thus depends on the context in which it is used.16 There
are multiple distinctions to be made to delineate the contents of the ordre public and to denote
which aspects of it are essential for the remainder of this thesis. The first noteworthy divide is
that of ordre public interne and ordre public externe. The latter is also sometimes referred to as
ordre public international.17 The ordre public interne was a concept originally developed to bar
the validity of certain contracts concluded by individuals and can be understood as applying to
purely domestic cases.18 Of more cross-border relevance is the ordre public externe, as it applies
in the context of private international law.19 That is not to say that contents of the ordre public
interne cannot constitute a part of the ordre public externe and vice versa; they are not mutually
exclusive. Nevertheless, the external public policy is of more limited nature and a state will
allow some renunciation of national practices even if this might be somewhat contrary to its
internal public policy.20
The second delineation pertains to the function of public policy which can be either positive or
negative. Ordre public positif describes the extension of the ordre public as a more direct way
of imposing the application of own national provisions of mandatory character as opposed to
foreign rules originally designated by the national conflict of law rules.21 This idea is also
codified in EU regulations allowing for the use of “overriding mandatory provisions” and is
referred to in French as “lois de police” or “lois d’application immediate”.22 Chronologically
this takes place before the ordre public négatif could come into play and, if feasible, bars the

14
Brussels Ibis Regulation, art 45(1)(a).
15
Susanne Lilian Gössl, ‘The public policy exception in the European civil justice system’ (2016) 4 The European
Legal Forum 85, 86; Tena Hoško, ‘Public Policy as an Exception to Free Movement within the Internal Market
and the European Judicial Area: A Comparison’ (2014) 10(1) Croatian Yearbook of European law and Policy 189,
189-190; Consolidated version of the Treaty on the Functioning of the European Union [2012] OJ C326/47, arts
36 (goods), 48 (workers), 56 (establishment), 73(d) (capital and payments).
16
Sacha Prechal, ‘Community Law in National Courts: The Lessons from Van Schijndel’ (1998) 35(3) Common
Market Law Review 681, 703.
17
For example in Gössl (n 15); Alex Mills, ‘The Dimensions of Public Policy in Private International Law’ (2008)
4(2) Journal of Private International Law 201.
18
Corthaut (n 3), 12-13; Mills (n 17), 213.
19
Mills (n 17), 213.
20
Corthaut (n 3), 19; Stéphanie Francq, ‘Article 34’ in Ulrich Magnus, Peter Mankowski, and Alfonso-Luis Calvo
Caravaca (eds), Brussels I Regulation (2nd rev edn, Sellier European law Publishers 2012, 656.
21
Andreas Spickhoff, Der ordre public im internationalen Privatrecht: Entwicklung – Struktur – Konkretisierung
(Neuwied 1989), 112; Burkhard Hess and Thomas Pfeiffer, ‘Interpretation of the Public Policy Exception as
referred to in EU Instruments of Private International and Procedural Law’ (Policy Department C: Citizens’ Rights
and Constitutional Affairs, European Parliament 2011), 28.
22
Rome I Regulation, art 9; Hess and Pfeiffer (n 21), 28; Kessedjian (n 11), 26.
6
recognition and enforcement of a foreign judgement on grounds of public policy.23 The scope
of this thesis ends with the negative function and will not further elaborate on the positive.
The last essential demarcation relates to the terms of ordre public européen and ordre public
communautaire. In essence, the former is a concept in the realm of the European Convention
on Human Rights and the latter has been developed in the context of the European Union and
its predecessors.24

Figure 1: Facets of ordre public

1.1.3 Content of a national public policy

Taking all these considerations into account the question arises what a national public policy
actually entails, and how to classify this concept. Corthaut defines public policy as “the complex
of norms at the very heart of a political entity expressing and protecting the basic options taken
by that entity in respect of its political, economic, social and cultural order”25. It is thus a living
instrument whose contents evolve over time.26 Moreover, an ordre public entails both
substantive and procedural aspects. Whereas the procedural public policy concerns principles
applicable in legal proceedings such as the right to a fair trial, the substantive public policy
refers to norms affecting the material law of the forum for example allowing for punitive
damages.27
The definition above declares an ordre public as being of fundamentally national character and
thus leaves room for diverging norms and principles among different states.28 The actual
specific contents of a public policy depend on the conceptions of the state itself and will be
determined by domestic law.29 To this end, a common denominator among the Member States
is the reference to fundamental norms of the respective legal system, especially due to their
placement in the constitutional hierarchy, which also comprises the EU Charter (hereinafter
CFREU) and the ECHR.30 The specific content of selected states’ ordre public will be discussed
in further detail in chapter 3, including differences and similarities among Member States of

23
Gössl (n 15), 86; Only the barring of recognition is referred to here and not the non-application of foreign law
as the chronological aspect holds only true for the former.
24
Corthaut (n 3) 24 and 33-34; Case 9/65 San Michele v High Authority [1965] ECR 27, 38.
25
Corthaut (n 3), 11.
26
Corthaut (n 3), 15-16.
27
Martin Gebauer and Felix Berner, ‘Ordre Public (Public Policy)‘, Max Planck Encyclopedia of International
Law <https://opil-ouplaw-com.proxy-ub.rug.nl/display/10.1093/law:epil/9780199231690/law-9780199231690-
e1448?rskey=c5my97&result=1&prd=MPIL> accessed 20 April 2023, para 14.
28
Report on the Convention on jurisdiction and the enforcement of judgements in civil and commercial matters
(Signed at Brussels, 27 September 1968) [1979] OJ C59/1 (Jenard Report), 44.
29
Francq (n 19), 657.
30
Gössl (n 15), 87.
7
the EU. At this point it suffices to mention that diverging public policies are a logical corollary
of the fact that a public policy is determined by each state itself.
1.2. The public policy exception
The main function of the ordre public in the context of private international law is to protect
fundamental values of the forum state against unacceptable results, which may originate either
from the application of a foreign law or from the recognition of a foreign judgment.31 It thus
aims to make a correction. This is done through the invocation of the “public policy exception”
as codified for example in Article 45(1)(a) Brussels Ibis Regulation, providing for the refusal
of recognition of a foreign judgement “if such recognition is manifestly contrary to public
policy (ordre public) in the Member State addressed”32.
1.2.1 Birth and development of the public policy exception in EU private international
law
With the entry into force of the Brussels Convention in 1968 a “double convention” appeared,
regulating on the one hand the recognition and enforcement of judgements but also providing
rules of direct jurisdiction.33 This first Brussels Convention already provided for the public
policy exception in Article 27(1) – to a large degree congruent to as we know it today.34
Furthermore, the 1968 Convention provided for a review of the grounds for refusal before
issuing the declaration of enforceability (exequatur).35 The Brussels I Regulation then
simplified the procedure for obtaining the exequatur and necessitated merely the check of
certain formal requirements as opposed to a review of grounds for refusal. 36 With the
introduction of this legal act, the wording of the public policy exception changed slightly,
namely adding the term “manifestly” to demonstrate its exceptional character.37 This
emphasised the prevalent exception-rule-ratio of an ordre public invocation.38 The newest
addition to the Brussels Regime is Regulation 1215/2012 (Brussels Ibis Regulation) replacing
the Brussels I Regulation without alteration of the public policy exception (except for the
inclusion of the French term ordre public).39
Other EU legal acts of importance in the realm of private international and for the purpose of
this thesis are the two Rome Regulations (Rome I on the law applicable to contractual
obligations and Rome II on the law applicable to non-contractual obligations).40 This thesis will
not dive into the Brussels IIbis Regulation dealing with matrimonial matters of parental
responsibility and international child abduction, but rather use it for comparative purposes.

31
Gebauer and Berner (n 27), para 1.
32
Brussels Ibis Regulation, art 45(1)(a).
33
Brand (n 5), 181.
34
Brussels Convention, art 27(1).
35
Brussels Convention, Title II Section 2.
36
Monique Hazelhorst, ‘Free movement of civil judgements in the European Union and the right to a fair trial’
(PhD thesis, Erasmus University Rotterdam 2016), 35.
37
Brussels I Regulation, art 34.
38
Hess and Pfeiffer (n 21), 28.
39
Brussels Ibis Regulation, art 45(1)(a).
40
Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and enforcement of
decisions in matrimonial matters and the matters of parental responsibility, and on international child abduction
(recast) [2019] OJ L178/1 (Brussels IIbis Regulation); Rome I Regulation; Rome II Regulation.
8
1.2.2 Rationale behind the public policy exception
Courts cannot and should not be forced to recognize judgements or apply laws which
fundamentally divert from the basic interests and values of their legal system. 41 If the
application of a foreign law or the recognition of a foreign judgement would “outrage the court’s
sense of justice and decency”42, it necessarily wants to deny application or recognition. The
underlying idea is that simply because a case possesses an international element, the public
policy should not be disregarded as its consideration constitutes a safety mechanism to ward
off intolerable results.43
With the abolition of the exequatur, the recognition and enforcement of foreign EU judgements
was nearly automated.44 The current legislation in force provides that “[a] judgement given in
a Member State […] shall be enforceable in the other Member State without any declaration of
enforceability being required.”45 This process or rather the lack thereof seems to demonstrate
the confidence EU Member States have in each other’s legal systems and judicial institutions.
Since then, the principle of mutual recognition as a manifestation of mutual trust among the
Member States lays at the heart of the free movement of judgements.46
A German saying goes “Vertrauen ist gut, Kontrolle ist besser” (translated to trust is good,
control is better). With this in mind, it does not come as a surprise that the ordre public exception
has stood its ground even after the abolition of the exequatur. It still guarantees that certain
fundamental values will always be upheld by refusing to enforce foreign judgements infringing
these.47 Therefore, and maybe especially as a corollary of the absence of an official exequatur,
the public policy exception remains so very essential and constitutes a manifestation of national
sovereignty.

Chapter 2 European Union and (its) ordre public

2.1. ECJ case law on the public policy exception in private international law
On several occasions, the ECJ dealt with cases concerning the public policy exception within
the Brussels regime. The case law on Article 27(1) Brussels Convention, and Article 34(1)
Brussels I Regulation, is still of practical importance to the interpretation of Article 45(1)(a)
Brussels Ibis Regulation in force today.48 To this end, five cases can be delineated which yield
significant clarifications on the content and application of the ordre public exception today.
2.1.1 Hoffman v Krieg
The case of Hoffman v Krieg was the first instance in which the ECJ clarified two essential
aspects of the public policy exception provided for in the Brussels regime.49 Firstly, the Court,

41
Aukje van Hoek, ‘Case C-7/98, D. Krombach v. A. Bamberski, Judgment of the Full Court of 28 March 2000.
[2000] ECR I-1395’ (2001) 38(4) Common Market Law Review 1011, 1018.
42
Gebauer and Berner (n 27), para 6.
43
van Hoek (n 41), 1018.
44
Paul Beaumont and Emma Johnston, ‘Can Exequatur be Abolished in Brussels I Whilst Retaining a Public
Policy Defence?’ (2010) 6(2) Journal of Private International Law 249, 252.
45
Brussels Ibis Regulation, art 39 for enforcement and mutatis mutandis in art 36 for recognition.
46
Wiesław Grajdura, ‘Free Circulation of Judgements’ (European Commission 2016), 2; Brussels I Regulation,
recital 26.
47
Beaumont (n 44), 252.
48
Hess and Pfeiffer (n 21), 31.
49
The case concerned the possible applicability of Article 27(3) Brussels Convention which precludes recognition
in case the foreign judgement is irreconcilable with a domestic one.
9
in reference to the Jenard report50, pointed towards the scheme of the Brussels Convention and
held that the clause operates only in exceptional circumstances.51 Secondly, the same paragraph
provided for the subsidiary character of the exception, precluding its invocation if any other
grounds barring recognition and enforcement are applicable.52
2.1.2 Krombach v Bamberski
The most influential case for the purpose of determining the Union’s conception of ordre public
exception in private international law is Krombach v Bamberski.53 The case concerned the
enforcement of a French judgement in Germany after legal proceedings in both countries.54
In a preliminary ruling, the ECJ provided that each state is in principle free to determine its own
public policy according to its own conception and that merely the limits are to be interpreted
by the Court.55 This landmark paragraph thus cleared up what was presumed until then but not
positive law, namely the inherent domestic character of an ordre public under the umbrella of
Union limitations. The Court subsequently clarified that doubts as to the proper jurisdiction of
the foreign court have no place in the public policy exception and that it only takes effect when
recognition or enforcement of a foreign judgement
“would be at variance to an unacceptable degree with the legal order of the State in
which enforcement is sought inasmuch as it infringes a fundamental principle […] the
infringement would have to constitute a manifest breach of a rule of law regarded as
essential in the legal order of the State in which enforcement is sought or of a right
recognised as being fundamental within that legal order.”56
Thus, a two-prong test was established necessitating the manifest breach of either a rule of law
regarded as essential or of a right recognised as being fundamental.57 In the case of Krombach,
the right to a fair trial and specifically the right to be heard, was recognised as having such a
fundamental character in the German legal order.58

50
Jenard Report (n 28) 44.
51
Case 145/86 Horst Ludwig Martin Hoffmann v Adelheid Krieg [1988] ECR 622, para 21 Hess and Pfeiffer (n
21), 13; Peter Stone, EU Private International Law: Harmonization of Laws (Edward Elgar Publishing 2008) 224.
52
Hoffman (n 51), para 21; Hess and Pfeiffer (n 21), 13; Stone (n 51) 224; The corresponding possibilities under
the current legislation are listed in Article 45(1)(b)-(e) Brussels Ibis Regulation.
53
Case C-7/98 Dieter Krombach v André Bamberski [2000] ECR I-1956.
54
The German doctor Krombach was accused of causing the death of the French daughter of Bamberski. After the
German prosecution dismissed the case against Krombach for lack of evidence, the French courts assumed
jurisdiction on basis of nationality of the victim. The French proceedings were held in absentia as Krombach
refused to appear before the court. His council could equally not submit a defence as this was prohibited by the
French Code Civil in contempt procedures (jugement par contumace). Subsequently, Bamberski was awarded
damages in the civil proceedings and sought to enforce this judgement in Germany. The enforcement order was
granted by both the German court of first instance and in appeal proceedings until Krombach appealed before the
Bundesgerichtshof (German Constitutional Court) arguing he was unable to effectively defend himself and referred
to a violation of German public policy.
55
Krombach (n 53), paras 22-23; more recently in Case C-302/13 flyLAL-Lithuanian Airlines v Starptautiskā
lidosta Rīga VAS [2014] EU:C:2014:2319, para 47; reiterated in Case C-420/07 Meletis Apostolides v David
Charles Orams [2009] ECR I-3571.
56
Krombach (n 53), para 37. Emphasis added.
57
Corthaut (n 3), 152.
58
Krombach (n 53), para 38.
10
2.1.3 Renault v Maxicar
Just a few weeks after Krombach, the Court once again answered a request for a preliminary
ruling in Renault v Maxicar.59 The enforcing Corte d’Appello di Torino was faced with the
question of whether incorrect application of Community law, namely provisions on the free
movement of goods and abuse of dominant position, warranted recourse to the ordre public
exception.60 The ECJ held that a mere discrepancy between the law which would have been
applied in the state where enforcement is sought and the law applied in the original proceedings
did not warrant non-recognition or non-enforcement of a foreign judgement.61 Placing
Community law and national rules on an equal footing, the Court found that the application of
Community law provisions can equally not be reviewed.62 Nevertheless, national courts are
under the obligation to protect essential EU law provisions in the same manner as fundamental
national rules.63 The rules of free movement of goods and abuse of dominant position can be
said to reach this threshold.64 However, their compliance is not ensured through recourse to the
public policy exception. Such errors in the application of laws as in the proceedings in Renault
should be rectified through other remedies at the stage of the initial judgement.65 Thus,
successful ordre public invocation is only possible as the ultimum remedium, when the system
of legal remedies of the forum did not adequately accommodate such rectifications.66
2.1.4 Gambazzi v Daimler
Apart from these three pivotal judgements, the ECJ had a more nuanced approach Gambazzi v
Daimler.67 It emphasised that even fundamental rights such as the rights of defence may be
subject to restrictions and that not all procedural irregularities warrant recourse to the public
policy exception.68 Nevertheless, these restrictions “must correspond to the objectives of public
interest pursued […] and must not constitute […] a manifest or disproportionate breach of the
rights.”69 The Court thus required a balancing exercise in which both the importance of
protection of rights of defence as well as public interest objectives find consideration.70 In this
regard, the national courts enjoy a certain margin of appreciation.71
2.1.5 Diageo v Simiramida
In 2015, the Court in Diageo v Simiramida further specified its case law from Renault v Maxicar
for the circumstances of possibly misapplied EU law in a judgment to be enforced abroad. 72 It

59
The case concerned a French judgement obliging the Italian company Maxicar and its director to pay damages
to Renault for counterfeiting car parts.
60
Case C-38/98 Régie Nationale des Usines Renault SA and Maxicar SpA [2000] ECR I-3009, paras 11-16;
Corthaut (n 3), 150; Hess and Pfeiffer (n 21), 32-33.
61
Renault (n 60), para 29.
62
Renault (n 60), para 32; Corthaut (n 3), 151-152.
63
Renault (n 60), para 32.
64
Hess and Pfeiffer (n 21), 33.
65
Renault (n 60), para 33.
66
Corthaut (n 3), 152.
67
The fact pattern largely coincides with the situation in Krombach and equally concerned the possible invocation
of the public policy clause due to breach of the right to be heard of the defendant.
68
Case C-394/07 Marco Gambazzi v DaimlerChrysler Canada Inc. [2009] ECR I-2582, para 29; Hazelhorst (n
36), 84-85.
69
Gambazzi (n 68), para 29.
70
Hazelhorst (n 36), 84-85; Francq (n 19), 669-770.
71
Hazelhorst (n 36), 85.
72
Case C-618/13 Diageo Brands BV v Simiramida-04 EOOD [2015] EU:C:2015:471.
11
held that the ordre public exception may only be invoked if not the initial error of law itself but
rather the recognition of a judgement containing such an error “would result in the manifest
breach of an essential rule of law in the EU legal order and therefore in the legal order of that
Member State.”73 This touches upon the relation between Union’s and the Member States’ legal
orders and therefore also their public policies. The delimitation of such a Union public policy
will be elaborated on in the remainder of this chapter.
2.2. An own EU public policy (ordre public communautaire)?
As has been established, various EU private international law instruments contain a codified
public policy exception. The Brussels Regime and the Rome Regulations provide for
consideration of the “public policy […] in the Member State addressed” or the “public policy
[…] of the forum” respectively.74 Hess and Pfeiffer regard the question whether public policy
in this context refers to domestic ordres publics and/or European public policy as much
disputed.75 They conclude that the relevant literature often takes a middle position and opts for
reference to fundamental principles of both EU Law and domestic legal orders.76 In my opinion,
both phrasings at least do not exclude the consideration of fundamental principles of the Union
as they significantly overlap with national values and often get incorporated in a national ordre
public.77
2.2.1 Considerations in the drafting of the exception in the Rome II Regulation
In this regard, two noteworthy discussions in the drafting of the Rome II Regulation deserve
mention. Concerned are the proposed amendment to the public policy provision, which now
constitutes Article 26 by the Parliament, and the non-introduction of the term “Community
public policy”.78
Firstly, a proposed amendment by the European Parliament aimed at further elaborating on the
public policy exception in three separate paragraphs.79 It listed specific examples which would
warrant the invocation of the clause, namely the
“breach of fundamental rights and freedoms as enshrined in the European Convention
on Human Rights, national constitutional provisions or international humanitarian
law.”80
The Commission, however, refrained from including this deliberation with the justification that
even though national ordres publics share common elements, they still vary to a significant and
not a merely negligible degree.81 This signifies that the EU is aware of the present diversity

73
Diageo (n 72), para 50. Emphasis added.
74
Brussels Ibis Regulation, art 45(1)(a); Rome I Regulation, art 21; Rome II Regulation, art 26. Emphasis added.
75
Hess and Pfeiffer (n 21), 28.
76
Hess and Pfeiffer (n 21), 28.
77
This will become evident throughout Chapters 3 and 4.
78
Rome II Regulation, art 26.
79
Committee on Legal Affairs, ‘Report on the proposal for a regulation of the European Parliament and of the
Council on the law applicable to non-contractual obligations (“Rome II”)’ [2005] COM(2003) 0427
<https://www.europarl.europa.eu/doceo/document/A-6-2005-0211_EN.html>, amendment 50.
80
Committee on Legal Affairs (n 78), amendment 50 paragraph 1a; Hess and Pfeiffer (n 21), 28.
81
Hess and Pfeiffer (n 21), 29; Commission, ‘Amended proposal for a European Parliament and Council
Regulation on the law applicable to non-contractual obligations (“Rome II”)’ COM (2006) 83 final, amendment
50.
12
among the public policies of the Member States and that even the mention of a non-exhaustive
list of contents would be too far-reaching.
Secondly, the Commission had originally drafted a full-fledged provision alongside the national
ordre public exception which included the notion of “Community public policy”.82 It provided
for the non-application of a foreign law if its effect were the award of non-compensatory
damages, such as punitive damages, as this was contrary to Community public policy.83 The
Parliament opted for relocation of this idea into the general public policy clause as a second
paragraph but already deleted the novel term.84 It pointed out that introducing the new concept
of “Community public policy” would go beyond the scope of the Regulation.85 In the end, there
was consensus to refrain from introducing the notion in the Rome II Regulation and the general
rationale behind the provision was included in recital 32 of the legal act, now with reference to
the public policy of the forum.86 This leaves room for the discussion if the EU actually possesses
a somewhat clear cut ordre public communautaire. The following sections will be committed
to seeking an answer to this question.
2.2.2 Possibility of a dogmatic Union public policy
The EU is commonly understood as an autonomous legal order and therefore has at least the
potential of possessing an autonomous public policy corresponding to this legal order, the same
way an individual state does.87 Moreover, considering that the EU is an established influential
political system which aims at guaranteeing the exercise of essential rights in a democratic
society, an ordre public communautaire seems to be a necessity rather than a mere possibility.88
For the purpose of defining a Union ordre public of importance also in the realm of private
international law, the starting point will be a general EU public policy. Neither academic
research nor EU case law or legislation focus on a differentiation between a possible EU ordre
public interne and externe, therefore, I will equally refrain from making this division.
Nevertheless, an EU public policy should still be discussed at this point to later deduce whether
the national public policies are influenced or correspond to the Union equivalent.
2.2.3 Different approaches in defining EU public policy
There have been a number of attempts to construct a Union public policy and these proposals
do not necessarily coincide. A distinction can be drawn between findings oriented towards the

82
Committee on Legal Affairs (n 78), art 24.
83
Committee on Legal Affairs (n 78), art 24; Wolfgang Wurmnest, ‘Towards a European concept of public policy
regarding punitive damages’ in Stefania Bariatti, Luigi Fumagalli and Zeno Crespi Reghizzi (eds) Punitive
Damages and Private International Law: State of the Art and Future Developments (Wolters Kluwer 2019), 272.
84
Committee on Legal Affairs (n 78), amendment 50; Committee on Legal Affairs, ‘Recommendation for second
reading on the Council common position for adopting a regulation of the European Parliament and of the Council
on the law applicable to non-contractual obligations ("ROME II") [2006] COM (2003) 0168
<https://www.europarl.europa.eu/doceo/document/A-6-2006-0481_EN.html> amendment 23; Wurmnest (n 83),
272.
85
Committee on Legal Affairs (n 78), justification to amendment 50. Interestingly, the European Parliament refers
to the Community public policy as a new concept and only in quotation marks.
86
Rome II Regulation, consideration 32; Johan Meeusen, ‘Rome II: A True Piece of Community Law’ in John
Athern and William Binchy (eds) The Rome II Regulation on the Law Applicable to Non-Contractual Obligations:
A New International Litigation Regime (Martinus Nijhoff Publishers 2009), 14; Wurmnest (n 83), 273.
87
Corthaut (n 3), 33.
88
Corthaut (n 3), 31.
13
pillar structure of the EU, those focused on the deduction of fundamental principles, and broader
concepts including numerous different considerations.
An example of the first option was introduced by Karydis in 2002.89 He proposed to divide the
Community public policy into an ordre public économique and an ordre public méta-
économique.90 The former aims at protecting competition within the Union through EU
competition law provisions such as Articles 101 and 102 Treaty on the Functioning of the
European Union (hereinafter TFEU) and by ensuring monetary stability.91 The meta-economic
section is further separated to include both an ordre public politique92, which can be roughly
equated to the principles enumerated in Article 6 Treaty on European Union (hereinafter TEU),
and an ordre public de sécurité intérieure93, on rules as to organized crime, drug trafficking,
terrorism, etc.94 Authors who focus on general principles of the Union often invoke co-
operation, legal certainty, proportionality, non-discrimination, protection of human rights, and
protection of consumers as laying the foundation for the Community public policy.95 An
example of a definition of the third category was provided for by Schlosser.96 His proposal
includes the five fundamental freedoms (including the freedom of transnational trade), Articles
101 and 102 TFEU, and the basic principles underlying EU Directives, especially if their
rationales are to increase economic freedom and serve the development of the internal market.97
Considering that Schlosser published his definition in the context of arbitration, a field which
quite extensively discusses the idea of an EU ordre public, special attention will be paid to ECJ
case law at the intersection of arbitration and public policy – even more so since arbitration is
part of private international law.98 Overall it should be reiterated that these definitions are
merely propositions whereas a widely accepted, authoritative, and all-encompassing description
of an ordre public communautaire has yet to be produced.
2.3. Interim conclusion regarding an EU public policy
Using arbitration as a starting point and taking into account the different definitions proposed
by scholars, I will delineate a somewhat precise, though not exhaustive, description of the ordre
public communautaire in order to later analyse its influence on Member State public policies.
2.3.1 ECJ case law on the contents of EU public policy
The ECJ has not referred to the term EU public policy in any judgement specifically, however,
some cases are still of relevance and can contribute to the delineation of what the ECJ regards
as components of the ordre public.

89
Georges Karydis, ‘L’ordre public dans l’ordre juridique communautaire: un concept à contenu variable’ (2002)
38(1) Revue trimestrielle de droit européen 1.
90
Karydis (n 89), 6.
91
Sacha Prechal and Natalya Shelkoplyas, ‘National Procedures, Public Policy and EC Law: From Van Schijndel
to Eco Swiss and Beyond’ (2004) 5 European Review of Private Law 589, 602.
92
Karydis (n 89), 10.
93
Karydis (n 89), 11.
94
Prechal (n 91), 602.
95
Prechal (n 91), 602.
96
Peter Schlosser, ‘Arbitration and the European public policy’ in Bruylant (ed), Arbitration and European Law:
Reports of the International Colloquium of CEPANI April 25, 1997 (Bruxelles 1997), 81-96.
97
Schlosser (n 96), 85-89; Prechal (n 91), 601-602.
98
The case law below stems from the framework of arbitration and is thus applicable in the context of private
international law and more specifically for the purpose of civil and commercial matters.
14
In the realm of arbitration, the Eco Swiss judgement fundamentally contributed to greater clarity
and provided that the underlying principles of EU competition law form part of public policy.99
In a referral to the ECJ, a Dutch court inquired whether there is a requirement to annul awards
which violate EU public policy and subsequently whether this notion encompasses EU
competition law.100 The ECJ firstly explained that if a court is required to assess a violation of
the domestic ordre public, it is also obliged to consider violations of Article 85 EC Treaty as a
ground for annulment.101 Secondly, it clarified unambiguously that “the provisions of Article
85 of the Treaty may be regarded as a matter of public policy […].”102
Two other cases also in the realm or arbitration provided for further examples of what the ECJ
considers to form part of public policy. Both the cases of Mostaza Claro and Asturcom, with
largely coinciding fact patterns, concerned the Directive on unfair terms in consumer contracts
and specifically Article 6(1) thereof.103 While in Mostaza Claro the ECJ characterized the
provision as ‘mandatory’104 and thus along the same lines as being of public policy nature, it
took an even greater leap in Asturcom.105 It branded Article 6 as constituting “a provision of
equal standing to national rules which rank, within the domestic legal system, as rules of public
policy.”106 Taking into account these three rulings, one can deduce that the Court elevates
certain provisions to the EU public policy level but refrains from placing whole legal fields of
EU law, such as the entirety of competition law or consumer protection law, in this category.107
What is especially interesting is that the ECJ in its judgements indeed addresses the topic of
what constitutes part of the ordre public, however refrains - in a similar manner as the EU
legislators - from using the term Community public policy or ordre public communautaire. The
only instances in which these notions are used in ECJ judgements are before the operative
part.108 This goes to show that maybe the EU institutions are not yet ready to make use of a
notion they themselves cannot clearly delineate and rather designate principles that they deem
of vital importance to form part of national public policies.
2.3.2 Other considerations not derived from ECJ case law
Waiting for the ECJ to fill in the public policy vacuum with norms it considers fundamental and
worthy of placing there will not lead to a full-fledged set of rules in the near future due to the
progressive nature of preliminary rulings. Other ideas will thus be taken up to create a workable

99
George Bermann, ‘Navigating EU Law and the Law of International Arbitration’ (2012) 28(3) Arbitration
International 397, 411; Prechal (n 91), 597; Case C-126/97 Eco Swiss China Time Ltd v Benetton International NV
[1999] ECR I-3079, par 39; The case concerned a licensing agreement where after a one-sided termination of the
agreement and following arbitration on the matter, the arbitral award was sought to be annulled in the Dutch courts.
100
Eco Swiss (n 99) par 30.
101
Eco Swiss (n 99), para 37; also known as the principle of equivalence as explained in Bermann (n 99), 412.
102
Eco Swiss (n 99), para 39.
103
Case C-168/05 Elisa María Mostaza Claro v Centro Móvil Milenium SL [2006] ECR I-10437; Case C-40/08
Asturcom Telecomunicaciones SL Cristina Rodríguez Nogueira [2009] ECR I-9602.
104
Ingmar GB Ltd v. Eaton Leonard Technologies C-381/98 is a case often cited when discussing how provisions
of EU secondary law are deemed to be mandatory by the court, however, this goes more in the direction of an
ordre public positif which is not the subject matter of this thesis.
105
Mostaza Claro (n 103), para 36.
106
Asturcom (n 103), para 52.
107
Bermann (n 99), 418.
108
See for example Case 93/78 Lothar Mattheus v Doego Fruchtimport und Tiefkühlkost [1978] ECR 2203, 2205.
Advocate General Tizzano in his Opinion on Mostaza Claro did make use of the notion and used the phrase of
forming “part of the concept of Community public policy as adopted by the Court”. However, this is only an AG
opinion and not a Court judgement.
15
notion of ordre public communautaire. Four elements – with significant overlap – come to mind
in that regard: constitutional principles common to the Member States, Article 6 TEU, general
principles, and the ECHR.
Constitutional principles of a national legal order most often form part of a domestic public
policy.109 Therefore, it seems only reasonable to include underlying values and norms of the
“constitutional” Treaties of the Union. These can be deduced inter alia from Article 2 and Article
6 of the Treaty on European Union.110 The former includes “values of respect for human dignity,
freedom, democracy, equality, the rule of law and respect for human rights, including the rights
of persons belonging to minorities.”111 Furthermore, the provision explicitly refers to the idea
that these norms are common to all Member States which reinforces their importance and
congruence within the Union.112 Article 6 TEU even goes a step further in combining the vital
elements of the Union public policy. It mentions the CFREU as having the same legal value as
the Treaties, the Union’s accession to the ECHR, and the
“fundamental rights, as guaranteed by the [ECHR] and as they result from the
constitutional traditions common to the Member States, shall constitute general
principles of the Union's law.”113
As to the ECHR reference, some scholars make a strict distinction between the ordre public
communautaire and the ordre public européen, though they usually still discuss them in the
same breath.114 Therefore, and considering that the Union has acceded to the ECHR and even
refers to it in its most fundamental articles, it is warranted to incorporate the European public
policy stemming from the ECHR within the Union public policy arising out of the EU itself.
This leads to my conclusion that the ordre public communautaire encompasses norms stemming
from the ECHR, general principles and traditions common to the Member States, including the
values listed in Article 2 and 6 TEU, and specific articles of consumer protection and
competition law. Since this already indicates a congruence to a certain degree with national
public policies, the question arises if or at least in which areas the public policies of the Member
States and the Union overlap. This will be conclusively analysed in the last chapter after
elaborating on the respective domestic ordres publics.

Chapter 3 Domestic ordres publics of the Member States

3.1. General sources of public policy
As of 2023, the European Union has 27 Member States, all of which to some degree differ in
their respective domestic public policy. As already pointed out, the Court reinforces the inherent
national conception of the ordre public in almost all judgements relating to the invocation of
the public policy exception.115 In order to coherently outline differences as well as similarities

109
This will be further elaborated on in Section 3 on Member States’ public policy.
110
Consolidated Version of the Treaty on European Union [2008] OJ C115/13 (TEU), arts 2 and 6.
111
TEU, art 2.
112
TEU, art 2; Notably, the accession criteria as referred to in Article 49 TEU equally require respect for the norms
under Article 2 and the promotion thereof.
113
TEU, art 6(3).
114
See for example Ioanna Thoma, ‘Die Europäisierung und die Vergemeinschaftung des nationalen ordre public‘
(LL. D. thesis, Universität Hamburg 2005).
115
Krombach (n 53), para 22. This is reiterated for example in Renault (n 60), Gambazzi (n 68), Diageo (n 72).
16
among the ordres publics, they must be analysed from various points of departure. This section
will thus be divided into general sources of public policy, the delineation of sources of
substantive and procedural ordre public, and the material differences among the Member States.
For the purpose of this chapter, the Member States frequently referred to are Germany, Italy,
France, and Spain. Other countries which will find consideration in certain domains include
Austria, Belgium, Czech Republic, Greece, Hungary, Luxembourg, Poland, and Portugal.116
3.1.1 Shared sources of public policy
In general, the sources of public policy differ only marginally among the EU Member States.117
Most often referred to are the fundamental principles that make up the respective legal system
and constitutional provisions as the hierarchically highest piece of national legislation.118 To
this end, Germany invokes ‘fundamental/basic principles of the German legal order and
concepts of justice’119, the ‘rule of law’120, as well as ‘constitutionally protected’121 rights.
Similarly, Spanish courts denote a ‘fundamental principle or a right recognised as fundamental
to the rule of law’122, with explicit reference to ‘principles, rights and guarantees under the
constitution, such as Article 24’123 as making up its public policy. The French equally refer to
their ordre public as including ‘in particular fundamental principles or the rights and individual
freedoms guaranteed by its constitution’124. By analogy, Italy places the ‘fundamental principles
of its constitution’ in the context of public policy, though making rather clear that these do not
exhaust the list.125
3.1.2 Individualization of sources of public policy
However, also other aspects find consideration in the notion of public policy such as the ‘legal
culture’126 in Spain or the ‘basic elements of the legal system, commerce or social fabric in the
case’127 in Germany. France and Italy take a more international approach and derive
fundamental norms from public international law and “universally accepted absolute values”128.
In this regard French courts refer to grounds of ‘international public policy’129 and Italian
judgements specifically mention ‘general principles of EU law including European public

116
For a comprehensive overview of all findings for the purpose of this thesis see the appendix.
117
However, reference is to be made to Chapter 2 Section 2.1. There it was provided that the Commission did not
accept a Parliament proposal for amending the Rome II Regulation listing reference instruments due to significant
variations among the Member States. This signifies that the differences that do exist are of importance.
118
Gössl (n 15), 87 see for example Sąd Najwyższy (PL) 07.11.2008 - IV CSK 256/08, unalex PL-62 and Ústavní
soud (CZ) 25.04.2006 - 709/2005, unalex CZ-8.
119
OLG Brandenburg (DE) 27.08.1998 - 8 W 274/98, unalex DE-188; OLG Dresden (DE) 07.09.2004 - 3 W
0916/04, unalex DE-465; OLG Dresden (DE) 26.07.2004 - 3 W 0745/04, unalex DE-464; OLG Frankfurt (DE)
21.09.2011 - 26 W 24/10, unalex DE-2558.
120
OLG Köln (DE) 06.10.1994 - 7 W 34/94, unalex DE-129; OLG Düsseldorf (DE) 13.11.1996 - 3 W 347/96,
unalex DE-233.
121
OLG Hamm (DE) 27.06.1996 - 1 W 102/95, unalex DE-186.
122
Audiencia Provincial Pontevedra (ES) 10.09.2009 - 143/2009, unalex ES-379.
123
unalex ES-379; Audiencia Provincial A Coruña (ES) 25.09.2008 - 115/2008, unalex ES-428.
124
Cour de Cassation (FR) 06.07.2016 - 15-14664, unalex FR-2477.
125
Corte di Cassazione (IT) 07.12.2005 - 26976, unalex IT-518.
126
Audiencia Provincial Baleares (ES) 15.02.2000 - 37/2000 - Ricardo ./. Jose Ángel, unalex ES-13.
127
unalex DE-2558.
128
Gössl (n 15), 87.
129
Cour de cassation (FR) 24.03.1998 - 96-10.171, unalex FR-148; Austria similarly refers to EU public policy
when fundamental rules of the EU are concerned in OGH (AT) 22.02.2007 - 3Ob233/06w, unalex AT-359.
17
policy’130 and ‘universal fundamental human rights’131. As the alien among these Member
States, Italy also emphasises that public policy does not simply consist of adding up imperative
norms, general principles of the legal system, and constitutional norms, but rather principles
that ‘form the ethicality of the legal system as resulting from the entirety of its norms’132. Other
countries emphasize fundamental norms in their private law system (Portugal)133, the product
and foundations of the social, political, economic, cultural, and religious life (Greece)134, or
rules of social rationale, subject to the social-economic system and moral political thinking
(Hungary)135. With these examples in mind, it can be concluded that many Member States share
a foundation of what they consider part of their ordre public and add individual ideas and norms
to domesticize their public policy.
3.2. Sources of procedural and substantive public policy
3.2.1 Sources of procedural public policy
Much like the general ordres publics, procedural public policies also differ among the Member
States. It is rather difficult to provide an all-encompassing definition of a country’s procedural
public policy as it continuously evolves through the issuing of judgements. However, some
national courts have delineated specific constitutional articles or provisions of their Code of
Civil Procedure to make up the procedural public policy.136 By contrast, France and Latvia make
immediate reference to the right to a fair trial and access to justice under Article 6 ECHR as
part of their ordre public international and refrain from invoking purely domestic norms.137
Germany and Greece highlight the fundamental principles of national procedural law, for
example the norm of German due process to render the proceedings in accordance with the rule
of law, or the Greek extra-statutorily guaranteed basic procedural principles and rules that
express the rule of law.138 A common denominator among most countries is the emphasis of the
‘right to be heard’ which is incorporated in Article 6 ECHR as well as national legislation.139
3.2.2 Sources of substantive public policy
Defining a national substantive ordre public poses an even more demanding task. Evidently,
many constitutions have a set of provisions of most fundamental character which provide for

130
Corte d’Appello Torino (IT) 19.11.1997 - R.G. 65/98 - Régie Nationale des Usines Renault SA . (...), unalex
IT-382.
131
unalex IT-518.
132
unalex IT-518 in Hess and Pfeiffer (n 21), 140.
133
Tribunal da Relação Porto (PT) 11.10.2004 - 0454490, unalex PT-37.
134
Ephetio Athens (GR) 02.12.2004 - 8237/2004, unalex GR-151.
135
Gössl (n 15), 87; László Kecskés, ‘Could lawful conduct violate public policy? – False domestic interpretation
in Hungary should be corrected with reference to the jurisprudence of the European Court of Justice’ in: Tomislav
Boric et al. (eds.), Festschrift Posch II (Universität Graz 2011), 303.
136
BGH (DE) 14.06.2012 - IX ZB 183/09, unalex DE-2785 (art. 103(1) Grundgesetz); unalex ES-428 (art. 24
Spanish Constitution); Corte di Cassazione (IT) 18.05.1995 - 5451, unalex IT-81 (art. 24 Italian Constitution);
Supremo Tribunal de Justiça (PT) 09.07.2015, unalex PT-232 (arts. 3, 4 and 547 Portuguese Code of Civil
Procedure and art. 20(3) Portuguese Constitution); 2016 évi CXXX Törvény a polgári perrendtartásról (Hungarian
Code of Civil Procedure), arts. 6-7 Act III in Hess and Pfeiffer (n 21), 54; Ústavní soud (CZ) 25.04.2006 -
709/2005, unalex CZ-8 (art. 36 Czech Charter of Fundamental Rights and Freedoms); Vrhovno sodišče Republike
Slovenije (SI) 12.10.2005 - Cp 10/2005, unalex SI-3 (art. 22 Slovenian Constitution).
137
Augstākās tiesas Senāts (LV) 31.10.2014 - SKC-2793/2014, unalex LV-14; Cour de cassation (FR) 16.03.1999
- 97-17.598, unalex FR-69.
138
unalex GR-151; unalex DE-233; unalex DE-2785.
139
See for example unalex DE-186; unalex PT-232; unalex LV-14; unalex SI-3.
18
general principles at the core of the national identity.140 French and Portuguese courts denoted
provisions of their respective Commercial Code or Civil Code as forming part of their domestic
substantive public policy.141 Germany, for example, recently referred to its constitutional right
of freedom of expression/opinion to bar enforcement of a Polish judgement.142 Apart from these
explicitly codified positive law examples, a second category of substantive ordre public norm
may be distinguished. These are values mentioned by the courts, which often find their origin
in the conceptions of the population or what is regarded as ‘good order’ in the state. An example
of such norms are the German “Grundgedanken der deutschen Regelungen und den in ihnen
enthaltenen Gerechtigkeitsvorstellungen“143. Other countries refer to the fundamental values of
the ‘moral, political, and economic order’ (Luxembourg)144, the ‘economic, ethical-religious,
or political order’ (Portugal)145, or the ‘fundamental principles governing the social and
economic order including principles of social co-existence and good morals’ (Poland)146. A
French judge defined the substantive public policy in 1948 as the “principes de justice
universelle considérés dans l’opinion française comme doués de valeur internationale
absolue”147. These findings contribute to the idea that simply because the sources of the
substantive ordre public might be similar, different aspects can be focused on which will
ultimately lead to diverse content. In general however, it is easier and more feasible to provide
for examples in which the substantive public policies differ among the Member States rather
than delineating the exact content of a national substantive ordre public.
3.3. Divergencies in procedural and substantive public policies
For the purpose of this section, only invocations of the public policy under the Brussels I regime
will be analysed. This limits the scope of deviations since the Brussels regime is concerned
solely with civil and commercial matters. Moreover, according to the ECJ, a mere difference in
legislation of the respective countries does not reach the threshold of infringing a public
policy.148 There needs to be a “manifest breach of a rule of law regarded as essential in the legal
order of the State in which enforcement is sought or of a right recognised as being fundamental
within that legal order.”149
3.3.1 Differences in procedural public policy
Several examples highlight the differences in procedural public policy and showcase that
certain practices in one state might lead to violation of the ordre public of another state. Two
instances will be analysed in further detail, namely the lack of motivation of a judgement, and
the right to a second instance. Other examples of diverging procedural public policies are the

140
Keresteš (n 12), 79.
141
Cour d’appel Limoges (FR) 26.09.2013 - 12/01243, unalex FR-2494; Tribunal da Relação Porto (PT)
05.06.2008 - 0833213, unalex PT-158; Gössl (n 15), 89; Ustav Republike Hrvatske (Croatian Constitution), art
61(2).
142
Piotr Mostowik and Edyta Figura-Góralczyk, ‘Ordre public and non-enforcement of judgments in intra-EU
civil matters: remarks on some recent Polish-German cases’ (2022) 18(2) Journal of Private International Law 317,
317.
143
unalex DE-188.
144
Cour d’appel (LU) 15.03.1995 - 17052, unalex LU-95 and by analogy unalex GR-151.
145
unalex PT-158.
146
unalex PL-62.
147
Cass civ (1) 25 May 1948, D 1948, 89.
148
Francq (n 19), 663; Krombach (n 53), para 37.
149
Krombach (n 53), para 37.
19
exclusion of a party from participation during the trial, notification of a party of the proceedings,
very high costs of legal representation or proceedings, and Antisuit or Mareva injunctions.150
As will become evident through examples, it proves difficult to categorize countries into those
whose threshold for finding a violation of procedural public policy is rather low or high.
The first example is the lack of reasons for a judgement and the subsequent non-enforcement
of said judgement in a second state. Parties invoke the ordre public exception quite frequently
for this reason, however, it is only given effect in France, whereas German, Belgian, Greek, and
Italian courts find no violation of public policy.151 Both camps offer various explanations as to
why their stance on the matter should find application. Germany for example sees no automatic
violation and emphasizes that a court may state its motivation for a judgement orally, thus
circumventing the requirement of a written reasoning.152 Interestingly, Article 111(1) Italian
Constitution actually necessitates the provision of reasons for a judicial decision, but Italian
courts do not regard its absence as falling in the public policy exception.153 This is because even
though this norm forms part of the ordine pubblico interno it has no place in the international
public policy which is to be applied in private international law.154 France, on the other hand,
consistently holds that there is an infringement of the French ordre public in cases where there
is a lack of written reasoning, unless documents are submitted which serve as an equivalent to
reasoning.155 Moreover, it emphasizes that motivation can also be requested retrospectively and
that simple reference to a general procedural rule is insubstantial if no specific consideration
becomes apparent upon which the ruling is based.156
A second example of diverging procedural public policy is the absence of a possibility to appeal.
Whereas Greece and Belgium regard this scenario as a violation of their public policy, France
and Germany see no conflict.157 The Greek courts provide that if the original proceedings
violate basic procedural rights and there is no possibility to contest such violation through
means of legal remedies, Greek public policy is violated.158 In Belgium, at least for default
judgements, substantive appeal must be available to not contradict the Belgian ordre public.159
Germany, on the other hand, argues against reaching the threshold of a public policy norm
claiming that there are also instances in the German legal order which do not warrant appeal.160

150
Gössl (n 15), 88.
151
Gössl (n 15), 88; Francq (n 19), 672.
152
OLG Saarbrücken (DE) 03.03.2004 - 5 W 212/03-52, unalex DE-326; OLG Düsseldorf (DE) 29.09.2006 - I-3
W 156/06, unalex DE-599; OLG Karlsruhe (DE) 06.12.2001 - 9 W 30/01, unalex DE-147; Francq (n 19), 672.
153
Costituzionale della Repubblica Italiana (Italian Constitution), art 111(1); unalex IT-81; unalex IT-285.
154
unalex IT-81.
155
Cour de cassation (FR) 22.10.2008 - 06-15.577, unalex FR-1281; Cour de cassation (FR) 20.09.2006 - 04-
11.635, unalex FR-359; Cour de cassation (FR) 17.01.2006 - 03-14.483, unalex FR-320; Burkhard Hess, Thomas
Pfeiffer and Peter Schlosser, ‘Report on the Application of Regulation Brussels I in the Member States’ (Study
JLS/C4/2005/03, Ruprecht-Karls-Universität Heidelberg 2007), 550.
156
Cour d’appel Colmar (FR) 19.10.2006 - 2 A 05/01147, unalex FR-409; unalex FR-1281.
157
Gössl (n 15), 88.
158
unalex GR-151.
159
Tribunal de première instance Bruxellles (BE) 25.05.2005 – 2004/14192/A unalex BE-184.
160
OLG Düsseldorf (DE) 07.12.1994 - 3 W 277/94, unalex DE-527.
20
The French courts merely invoke that the absence of an appellate remedy has no place in the
French ordre public international and equally not in Article 6(1) ECHR.161
3.3.2 Differences in substantive public policy
The number of cases of divergencies of substantive public policy among the Member States are
fundamentally limited in the realm of the Brussels Ibis Regulation or the Rome Regulations.162
There are multiple reasons why this is the case. Firstly, the scope of these regulations is limited
to civil and commercial matters. In this context, the similarity of substantive ordre public is
prevalent and legal divergencies are rarely strong enough to cause a violation of public policy.163
Secondly, the regulation prohibits the review of substance of the foreign decision.164 This ban
makes the invocation of substantive public policy virtually impossible.165 Member States seem
to find a way around this prohibition by stating that it is not the substance of the foreign
judgement itself which goes against the national ordre public but rather the recognition of such
a judgement.166
One example of varying public policies, that can be brought forward even in the realm of civil
and commercial matters, concerns the protection of employees in instances of employment
contract termination.167 The difference here is that Italian courts regard protection against
unjustified dismissal as forming part of its national substantive ordine pubblico.168 Germany au
contraire considers dismissal protection as outside its public policy.169 Interestingly, Italy refers
to Article 30 CFREU, a provision also applicable in Germany, as protecting employees and
links this to the common constitutional traditions throughout the EU.170 What is more, the
Italian judgement specifically mentions “[l]a dottrina tedesca […], (tutela che il diritto tedesco
ha introdotto per primo, dai primi anni di Weimar)” which contains the notion of stability of
protection against unjustified dismissal.171 Nevertheless, as became evident through the
national case law, the German norms in this subject matter have no place in the substantive
ordre public.
A second instance in which there is a slight difference in the invocation of public policy is the
matter of contractual punitive damages under the Rome II Regulation.172 Italy and Lithuania
for example, denote the possibility for punitive damages which aim to punish or deter violations

161
unalex FR-320. The connection between Article 6(1) ECHR and procedural public policy will be explored in
further detail in Chapter 4.
162
Hess, Pfeiffer and Schlosser (n 154), 559; Hoško (n 15), 201.
163
Hess, Pfeiffer and Schlosser (n 154), 559; Hoško (n 15), 201; Keresteš (n 12), 85.
164
Brussels Ibis Regulation, art 52; Francq (n 19), 662.
165
Hoško (n 15), 201.
166
See for instance Cour d’appel (LU) 30.11.2000 - 24425 - V. ./. R., unalex LU-209; unalex PL-62; Nejvyšší soud
(CZ) 24.03.2011 - 20 Cdo 5180/2006, unalex CZ-25. This is now also established in ECJ case law since 2015
Diageo v Simiramida.
167
Gössl (n 15), 88-89.
168
Corte di Cassazione (IT) 09.05.2007 - 10549, unalex IT-516; unalex IT-518.
169
Landesarbeitsgericht Köln (DE) 06.11.1998 - 11 Sa 345/98, unalex DE-2483; Landesarbeitsgericht Hessen
(DE) 01.09.2008 - 16 Sa 1296/07, unalex DE-2529.
170
Corte di Cassazione (IT) 11.11.2002 - 15822, unalex IT-527.
171
unalex IT-527.
172
Milieu SRL ‘Study to support the preparation of a report on the application of Regulation (EU) No 1215/212
on jurisdiction and the recognition and enforcement of judgements in civil and commercial matters (Brussels Ia
Regulation)’ (Publications Office of the European Union 2023) 248.
21
as contrary to their public policy.173 France and Greece on the other hand make a further
distinction and only qualify exorbitant or disproportionate punitive damages as violating their
substantive ordre public.174 Considering that Britain has left the European Union, its stance is
not to be granted great attention. Nevertheless, English law, before 2020, had a standalone
position in the Union, yielding that the imposition of punitive damages falls outside its public
policy.175

Chapter 4 Harmonization of the domestic public policies and outlook

4.1. Types of influence
Having analysed the national public policies of the EU Member States, the next logical step is
to ascertain the influences which an ordre public is subjected to and whether these promote
significant harmonization among the states. In this regard, three considerations can be
identified: international norms, the European Union, and the ECHR.
4.1.1 International influences on the ordre public
States are acting in a globalized world where international treaties are commonly negotiated
and ratified. Thus, it does not come as a surprise that certain conventions have an impact on a
country’s ordre public. Mills describes this as “absolute public policy” which is shared in a
universal sense.176 He gives the example of international treaties, which are widely adopted or
norms expressed in customary international law.177 Especially the courts of France and Italy
invoke notions such as the “norms of all civilized nations” denoting them as universally
accepted absolute values.178 Italy also refers to the “universal need to protect fundamental
human rights” and thus references ideas present in international treaties.179 These examples
demonstrate the extent to which international norms have infused the notion of domestic ordre
public and have given it an international touch. However, the instances in which national courts
make use of and explicitly reference such transnational public policy are rather limited. More
frequently referred to are values of the European Union and the ECHR.
4.1.2 Regional influences on the ordre public
Both the European Union and the ECHR together with their respective case law have had a
tremendous impact on the unification of public policies among the Member States. Both
institutions are sources of regional norms which can be viewed as common and fundamental
among the state parties and affecting their ordre public.180 At this point, it should be emphasised
that it is not the international institution as such (the EU and the Council of Europe) which
‘imposes’ such norms and values on the Member States, but it is the Member States themselves
who construct such concepts which are common to them and elevate these to public policy

173
Hess and Pfeiffer (n 21), 140 (Lithuania) and 147 (Italy).
174
Hess and Pfeiffer (n 21), 65 (Greece) and 146 (France).
175
Hess and Pfeiffer (n 21), 166.
176
Mills (n 17), 214.
177
This absolute notion of ordre public is also labelled “transnational” public policy or “truly international public
policy”.
178
Gössl (n 15), 87.
179
unalex IT-518. Interestingly, the Italian Court points out that the ordre public may respond to the universal need
to protect fundamental human rights, it can however not be found in it.
180
Mills (n 17), 214.
22
level.181 Since both the Union and the Member States are parties to the ECHR, they share the
same ordre public in that regard. In this sense, the European public policy, encompassing both
the ECHR and the Union norms, gives effect to shared values.182 This process has been
described as “the gradual merging of the values of the “two Europes”, the seat of human rights
and the union of economic interests”183. Despite this mutual sentiment among the Member
States, their courts make reference to said regional standards with different frequency. While
France, Luxembourg, and Italy refer to EU law quite regularly, Germany, Greece, and Hungary
habitually invoke their own constitutional standards and general principles while only
mentioning ECJ landmark cases.184 Three examples of countries which see the public policy
exception virtually exclusively in light of their own systems are Spain, Poland, and Lithuania.185
However, this does not automatically imply that regional standards are of lower significance.
Spanish courts make frequent use of Article 24 of the Spanish Constitution which corresponds
to Article 6 ECHR and thus ensures adherence to it.186
4.2. Harmonization of national public policies
4.2.1 Harmonization of substantive ordre public and the example of punitive damages
From all findings above it can be deduced that the EU ordre public as well as the norms
underlying the ECHR have found their way into the domestic substantive public policies and
are thus protected when it comes to the recognition and enforcement of foreign judgments.187
However, in the realm of civil and commercial matters, the impact of harmonization of
substantive public policies remains minimal due to the lack of substantial differences to begin
with. The only means by which the EU could actually have an impact would be to clearly denote
the content of the substantive EU ordre public and to put its foot down in codifying it in
secondary Union law.
This becomes evident considering once again the drafting process of the Rome II Regulation
concerning punitive damages.188 The Commission initially intended to include a total
prohibition of punitive damages due to incompatibility with “Community public policy”,
however, the Parliament was not yet ready to enshrine this concept in positive law. The washed-
out consideration 32 now merely provides that “punitive damages of an excessive nature may
[…] be regarded as contrary to the public policy […] of the forum.”189 Thus, the EU has
foregone a unique opportunity to harmonize a matter of substantive public policy and the status
quo remains – it is the Member States which have the final say.

181
Constitutional principles common to the Member States, as well as general principles as defined in Article 6(3)
thus coincide with national ideologies.
182
Mills (n 17), 214.
183
Horatia Muir Watt, ‘Evidence of an Emergent European Legal Culture: Public Policy Requirements of
Procedural Fairness Under the Brussels and Lugano Conventions’ (2001) 36 Texas International Law Journal 539,
539.
184
Hess and Pfeiffer (n 21), 155; see for instance unalex IT-527; unalex FR-69; unalex FR-320.
185
Hess and Pfeiffer (n 21), 155.
186
Hess and Pfeiffer (n 21), 78; unalex ES-428.
187
As established in Chapter 2, this includes general principles, the values listed in Article 6 TEU, constitutional
principles common to the Member States, ECHR norms, and specific articles of consumer protection and
competition law.
188
A detailed explanation of the drafting process can be found in Chapter 2 section 2.1.
189
Rome II Regulation, consideration 32. Emphasis added.
23
4.2.2 Harmonization of procedural ordre public and the possibility to appeal
Seemingly ambiguous is the influence of Article 6 ECHR on the invocation of the procedural
public policy. As discussed, Member States either refer to the ECHR directly or indirectly
through recourse to national law equivalent to the provision. This might lead to the conviction
that the procedural ordre public is rarely invoked due to ostensibly full harmonization among
the Member States. However, what becomes evident in empirical research is that adherence to
procedural public policy is still frequently reviewed under Article 45(1)(a) Brussels Ibis
Regulation – much more than substantive public policy.190 This can be explained by a twofold
of considerations.
Firstly, the crux is not the existence of the Article 6 standards, but rather their interpretation by
national courts. It seems that Article 6 ECHR merely provides a mutual floor of minimum
harmonization of procedural norms rather than a completely unified ordre public regarding
judicial procedures.191 Moreover, the domestic significance, conception, and scope of
application of the specific value play a fundamental role. Simply because states share the same
set of rules, they do not necessarily see them in the same light.
Secondly, Article 6 lacks universal reach and, as broad as it may be, cannot and does not cover
all aspects which might be included in a domestic procedural ordre public.192 Most astonishing
is the fact that the wording of Article 6 enshrines no right to appeal, which the Court confirmed
in various judgements.193 Hence, while some Member States elevate this right to have public
policy status, others refrain from doing so. Thus, even in such fundamental matters as the
possibility to appeal a judgement of first instance, the national public policies divert as the
ECHR opts for non-harmonization of the matter and its court lacks the necessary judicial
activism.
4.3. Necessity of a public policy exception in today’s EU
National public policies are continuously influenced by both EU law and the ECHR (and even
internationally) and have thus been to some degree Europeanised and harmonized. Therefore,
the question arises whether there is still a need for a codified ordre public exception in private
international law, especially within the scope of civil and commercial matters. There are
arguments to be made for both sides, however, I believe that in the EU as it stands today, an
abolition of the public policy exception is highly unlikely and even less feasible.
4.3.1 Abolition considerations in the drafting of the Brussels Ibis Regulation
During the discussion on the abolition of exequatur for the purpose of revising the Brussels I
Regulation, the destiny of the public policy exception was under scrutiny. The original
Commission Proposal from 2010 substantially modified the ordre public exception and opted

190
Evidence through search on unalex regarding Brussels Ibis art. 45(1)(a).
191
See for example, the right to be heard is often invoked as public policy even though this is already supposed to
be harmonised under Article 6 ECHR.
192
See for example Chapter 3 Section 3.2 on the example of employment contract termination.
193
Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human
Rights, as amended) (ECHR), art 6; Durisotto v Italy App no. 62804/13 (ECtHR, 28 May 2014), para 53; Iorga v
Romania App no 4227/02 (ECtHR, 25 January 2007), para 44; Association des personnes victimes du système
S.C. Rompetrol S.A. et S.C. Geomin S.A. et autres c. Roumanie App no 24133/03 (ECtHR, 25 June 2013), para
68; Interestingly, all judgements are only published in French which seems contrary to the weight they possess.
24
for its virtual eradication in most instances.194 Although the original Article 34(1) Brussel I
Regulation was not eliminated, it stipulated that it could only be invoked in two specific
categories of judgements.195 For the purpose of fulfilling the objective of a genuine free
circulation of judgements, the impact assessment by the Commission accompanying the
proposal described four possible policy options.196 They reached from simply maintaining the
status quo to abolishing the exequatur while establishing essential safeguards (option 4a).197
The three proposed safeguards under option 4a were the possibility of an extraordinary remedy
in the Member State of the original judgment in case the defendant was not informed of
proceedings198, a remedy in the enforcing state for cases involving possible procedural
violations of the rights of defence under art. 47 CFREU199, and the opportunity to hinder
enforcement if the judgment was irreconcilable with a previous one200.201 As to the substantive
public policy, the Commission solely noted that in light of the principle of mutual trust and the
lack of cases concerning this issue, there was no necessity for such an exception.202
After assessing the effectiveness of each policy option, the Commission concluded that
possibility 4a would be the most suitable, especially taking into account the issue of
fundamental rights.203 The procedural safeguards which would be provided in case of a breach
of the right to a fair trial and defence were said to comply with the CFREU and the inclusion
of the three grounds of refusal ensured an adequate judicial protection.204 While this proposal
can be said to provide for at least some protection which corresponds to the Member States’
procedural public policy, the substantive public policy is not accounted for by any means. By
analogy, the Rome Regulations, which were drafted just a few years prior, did indeed contain a
full-fledged public policy exception, including substantive ordre public considerations.205
This stance was also taken up by the European Parliament, in its subsequent opinion and
report.206 The Committee on Legal Affairs contended that the procedural as well as substantive
public policy exceptions remained crucial.207 It referred to the Member States’ possible
international obligations to safeguard fundamental values and that this responsibility was not

194
Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on jurisdiction and the
recognition and enforcement of judgements in civil and commercial matters (Recast)’ COM (2010) 748 final.
195
Commission (n 194), art 37(3) and Title Section 2. Namely those concerning non-contractual obligations in
cases of violations of privacy, and rights relating to personality and compensation in collective redress proceedings
provided certain conditions are fulfilled.
196
Commission Staff Working Paper ‘Impact Assessment, Accompanying document to Proposal for a Regulation
of the European Parliament and of the Council on jurisdiction and the recognition and enforcement of judgements
in civil and commercial matters (Recast)’ SEC (2010) 1548 final, 14-17.
197
Other policy options were keeping the exequatur while reducing exception grounds for recognition and
enforcement, keeping the exequatur while mitigating the burden of proof for the applicant, and abolishing the
exequatur and refraining from establishing safeguards.
198
Commission (n 194), art 45.
199
Commission (n 194), art 46.
200
Commission (n 194), art 43.
201
Commission Staff Working Paper (n 196), 16.
202
Commission Staff Working Paper (n 196), 16.
203
Commission Staff Working Paper (n 196), 16.
204
Commission Staff Working Paper (n 196), 19.
205
Hess and Pfeiffer (n 21), 170.
206
Committee on Legal Affairs, ‘***I Report on n the proposal for a regulation of the European Parliament and of
the Council on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
(recast)’ [2012] COM (2010) 0748 <https://www.europarl.europa.eu/doceo/document/A-7-2012-0320_EN.html>.
207
Committee on Legal Affairs (n 206), 139.
25
mitigated in proceedings for enforcement of foreign judgements.208 Moreover, for reasons of
legal certainty, the public policy consideration in the exequatur should not be required solely in
cases of specific subject matter.209 Instead, exemptions were to be abolished and all judgements
should be assessed with the national ordre public in mind. Thus, the Brussels Ibis Regulation
as it is in force today, while abolishing the exequatur procedure, ensures that a public policy
exception remains at disposal to bar the recognition and enforcement of any type of judgment
if necessary.210
4.3.2 Current situation
Since the introduction of the Brussels Ibis Regulation and its concomitant exequatur abolition,
the national public policy is only considered through the Article 45(1)(a) procedure. Taking into
account that the number of ordre public clause invocations barely diminished since 2012, it is
evident that the exception’s perpetuation was rather appreciated.211 Despite the possibility to
raise public policy considerations in enforcement proceedings, the invocations are rarely
successful.212 Three factors play a role here. Firstly, non-enforcement due to ordre public
violation is granted more often in cases with outside EU elements, such as the application of
non-intra EU law; those are less common.213 Secondly, accepted intra-EU cases are found rather
in the context of the Brussels IIbis Regulation and family law in general as this is regarded a
more sensitive area of law than civil and commercial matters.214 Thirdly, Member States seem
to use the ordre public exception more cautiously within the context of the Brussels Ibis
Regulation. Despite frequent invocation of the clause by the parties, acceptance by the
enforcing courts is a seldom occurrence. The mutual trust among the Member States and in
their administration of justice seems prevalent, especially in the realm of civil and commercial
matters. This goes to show that the national courts are rather far from exhausting their margin
of appreciation granted in Krombach, as they seem reluctant to find a judgement so clearly
violating the domestic ordre public that the exception is triggered.
A consideration worth mentioning at this point is that through harmonization, the ordre public
externe has evolved into a mechanism that is no longer emphasizing the imposition of domestic
policies but rather signifies that the foreign judgement could be contrary to the ordre public of

208
Committee on Legal Affairs (n 206), 139.
209
Committee on Legal Affairs (n 206), 139.
210
Brussels Ibis Regulation, art 45(1)(a).
211
Unalex contains 208 cases from 1977 to 2012 and 35 cases from 2012-2019.
212
Francq (n 19), 672.
213
See for example an Italian court refusing to recognize a judgement by a Palestinian religious court applying
Islamic law ‘The Italian Court of Cassation on Islamic Repudiation and Public Policy’ (EAPIL, 18 September
2020) <https://eapil.org/2020/09/18/the-italian-court-of-cassation-on-islamic-repudiation-and-public-policy/>
accessed 02 May 2023.This case is however not within the scope of the Brussels regime on civil and commercial
matters.
214
See for example the ruling of the Italian Constitutional Court against the recognition of surrogacy arrangements
‘The Italian Constitutional Court Asked to Rule on Surrogacy Arrangements and Public Policy’ (EAPIL, 28
September 2020) <https://eapil.org/2020/09/28/the-italian-constitutional-court-asked-to-rule-on-surrogacy-
arrangements-and-public-policy/> accessed 02 May 2023 or a Greek court deciding against an English custody
order concerning same-sex couple ‘English Custody Orders Violate Greek Public Policy if the Parents Form a
Same-Sex Couple’ (EAPIL, 3 February 2021) <https://eapil.org/2021/02/03/english-custody-orders-violate-greek-
public-policy-if-the-parents-form-a-same-sex-couple/> accessed 02 May 2023, For more information on family
law matters intra-EU see Gössl (n 15), 89; Hess and Pfeiffer (n 21), 171.
26
the foreign state itself.215 However, it would be beyond the scope of this thesis to dive into the
consideration of judgements violating their own ordre public.
4.3.3 Possible future developments
The public policy exception is not at risk of being abolished in the near future. Reasons for this
are firstly, that national courts are only giving effect to the exception in the most fundamental
of violations, and secondly, that divergencies are still too prevalent for there to be found an
acceptable consensus without EU initiative.
As mentioned, successful invocation of the ordre public is a rare occurrence, especially
considering that a mere difference in laws does not amount to a violation even if the norm
concerned is of public policy status. This is the case if the ordre public interne and not externe
is affected. Only when the local law is not accommodating the manner in which the foreign law
differs, the ordre public international is violated.216 Mills describes this interplay as “the more
absolute the conception of a norm is, the less room there is for tolerance of difference, and the
more likely it is that public policy will be invoked to give effect to the norm.”217 This in turn
means that the small number of cases ruling in favour of non-enforcement deal with such
fundamental aspects of the national legal order, that it would undermine national sovereignty if
the foreign judgement could face no blockage. As long as states ensure that they are only
employing Article 45(1)(a) in exceptional cases where a judgement goes against their national
core values – which simply are often shared within the EU or globally – there is no reason to
abolish the ordre public exception.
While it is highly unlikely that all competent EU institutions agree in the near future to an
abolition of the public policy exception,218 they could mitigate its reach by further unifying and
Europeanising fundamental norms. However, one would have to take into account the
individual considerations of each Member State and reach a common solution. If successful,
this would constitute a next step in Europeanization. With regard to procedural public policy,
national discrepancies regarding the right to appeal, could be quite easily accounted for in
Articles 6 ECHR or corresponding Article 47 CFREU. De facto however, the institutions opt
against inclusion of this consideration and regard harmonization as depleted. The idea of a full-
fledged ordre public éuropeen/communautaire on the basis of codified procedural guarantees,
remains an illusion and no realistic future scenario. As to substantive public policy, the example
of punitive damages epitomizes the continuous harmonization struggles. Despite the ongoing
spirit of harmonization, the cautious legislators have the upper hand and fundamental
Europeanization of public policies continues only as an aspiration.

215
Mills (n 17), 216.
216
Mills (n 17), 213.
217
Mills (n 17), 213. Said tolerance of divergence is influenced by the degree to which the public policy norm is
shared among the states.
218
This has become evident in the drafting considerations of the Brussels Ibis Regulation.
27
Figure 2: Cycle of non-Europeanization

Conclusion
The public policy exception in European private international law constitutes a manifestation
of national sovereignty and a shield against the application of foreign laws or enforcement of
foreign judgements which go against the national ordre public. When states invoke their public
policy, an inherent domestic concept, they consider the fundamental norms and values
enshrined in their positive laws and legal thinking. Sources and content differ to some extent
among the EU Member States, but overlap can be easily deduced as well. Whereas the
substantive public policies are highly tailored to each state, its procedural counterparts can be
said to be less diverging. Domestic cases predominantly concern procedural aspects which are
not shared among the Union219 and if it does concern a shared norm, whether the public policy
exception will be granted depends on the national interpretation of said norm.
The European Union institutions appear to struggle to delineate a clear ordre public
communautaire of their own, despite the continuous efforts by scholars to define its contents.
However, even without an explicit definition, EU norms, including the ECHR, have found their
way into the national ordre public of the countries. This consideration seems to erode the
intrinsic national conception of public policy. Noteworthy, some Member States such as France
and Italy seem to give great weight to these outside influences and frequently refer to them in
their own judgements. The European influence on the Member States, while having created a
basic level of harmonization of substantive as well as procedural public policy, are far from
fully harmonizing the national definitions. Thus, Europeanization to an extent which would
warrant virtual eradication of the ordre public exception in private international law has yet to
be carried out. Discussions on the abolition of the clause have proven unsuccessful at this point
in time, so that the legal act in force opts for the incorporation of the safeguard. As long as there
are differences among the Member States’ public policies, the ordre public exception will
remain and give effect to these domestic values and norms.
Only what is definable is harmonizable; and since the ordre public is mostly determined by the
respective courts through the issuing of judgments, neither the Member States themselves nor
the European Union have the means to understand the exact content of their public policies.
Even though some aspects of public policy are laid down in black letter law, such as certain
constitutional provisions, especially substantive ordre public seems ambiguous and rather
undefined. As this thesis makes frequent use of French terms, it shall end with: “l’essentiel est
invisible aux yeux.”220

219
Reference can be made to the right to appeal as discussed above.
220
Antoine de Saint-Exupéry, ‘Le Petit Prince’ (1986 Klett).
28
Statements

Statement 1:
Art. 6 ECHR should be amended to include a right to appeal judgements of first instance courts
as this would further harmonize the hitherto diverging national procedural public policies and
further minimize invocations of the ordre public exception.
Statement 2:
The EU legislative bodies need to stand their ground and classify punitive damages as violating
Community public policy in order to mitigate the invocations of national substantive public
policies for this matter.
Statement 3:
The ordre public exception is not in danger of being abolished as divergences between domestic
substantive as well as procedural public policies remain and will continue to remain simply due
to 27 national identities existing within the sui generis system of the EU.

29
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C326/47
Secondary Union Legislation
Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition
and enforcement of judgments in civil and commercial matters [2001] OJ L12/1
Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007
on the law applicable to non-contractual obligations [2007] OJ L199/40
Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008
on the law applicable to contractual obligations [2008] OJ L177/6
Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December
2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial
matters (recast) [2012] OJ L351/1
Council Regulation (EU) 2019/1111 of 25 June 2019 on jurisdiction, the recognition and
enforcement of decisions in matrimonial matters and the matters of parental responsibility, and
on international child abduction (recast) [2019] OJ L178/1
European Union Cases
Case 9/65 San Michele v High Authority [1965] ECR 27
Case 93/78 Lothar Mattheus v Doego Fruchtimport und Tiefkühlkost [1978] ECR 2203
Case 145/86 Horst Ludwig Martin Hoffmann v Adelheid Krieg [1988] ECR 622
Case C-126/97 Eco Swiss China Time Ltd v Benetton International NV [1999] ECR I-3079
Case C-7/98 Dieter Krombach v André Bamberski [2000] ECR I-1956
Case C-38/98 Régie Nationale des Usines Renault SA and Maxicar SpA [2000] ECR I-3009
Case C-168/05 Elisa María Mostaza Claro v Centro Móvil Milenium SL [2006] ECR I-10437
Case C-394/07 Marco Gambazzi v DaimlerChrysler Canada Inc. [2009] ECR I-2582
Case C-420/07 Meletis Apostolides v David Charles Orams [2009] ECR I-3571

30
Case C-40/08 Asturcom Telecomunicaciones SL Cristina Rodríguez Nogueira [2009] ECR I-
9602
Case C-618/13 Diageo Brands BV v Simiramida-04 EOOD [2015] EU:C:2015:471
Case C-302/13 flyLAL-Lithuanian Airlines v Starptautiskā lidosta Rīga VAS [2014]
EU:C:2014:2319
European Court of Human Rights Cases
Association des personnes victimes du système S.C. Rompetrol S.A. et S.C. Geomin S.A. et
autres c. Roumanie App no 24133/03 (ECtHR, 25 June 2013)
Durisotto v Italy App no. 62804/13 (ECtHR, 28 May 2014)
Iorga v Romania App no 4227/02 (ECtHR, 25 January 2007)
Domestic legislation
Costituzionale della Repubblica Italiana (Italian Constitution)
Ustav Republike Hrvatske (Croatian Constitution)
2016 évi CXXX Törvény a polgári perrendtartásról (Hungarian Code of Civil Procedure)
Domestic Cases
Augstākās tiesas Senāts (LV) 31.10.2014 - SKC-2793/2014, unalex LV-14
Audiencia Provincial Baleares (ES) 15.02.2000 - 37/2000 - Ricardo ./. Jose Ángel, unalex ES-
13
Audiencia Provincial A Coruña (ES) 25.09.2008 - 115/2008, unalex ES-428
Audiencia Provincial Pontevedra (ES) 10.09.2009 - 143/2009, unalex ES-379
Corte di Cassazione (IT) 18.05.1995 - 5451, unalex IT-81
Corte d’Appello Torino (IT) 19.11.1997 - R.G. 65/98 - Régie Nationale des Usines Renault SA
. (...), unalex IT-382.
Corte di Cassazione (IT) 11.11.2002 - 15822, unalex IT-527
Corte di Cassazione (IT) 07.12.2005 - 26976, unalex IT-518
Corte d’Appello Milano (IT) 11.02.2006 - 245/06 - S.R.L. Maspero Elevatori ./. Wegner Thorste
(...), unalex IT-285
Corte di Cassazione (IT) 09.05.2007 - 10549, unalex IT-516
Cass civ (1) 25 May 1948, D 1948
Cour de cassation (FR) 24.03.1998 - 96-10.171, unalex FR-148
Cour de cassation (FR) 16.03.1999 - 97-17.598, unalex FR-69
Cour de cassation (FR) 17.01.2006 - 03-14.483, unalex FR-320
Cour de cassation (FR) 20.09.2006 - 04-11.635, unalex FR-359
31
Cour d’appel Colmar (FR) 19.10.2006 - 2 A 05/01147, unalex FR-409
Cour de cassation (FR) 22.10.2008 - 06-15.577, unalex FR-1281
Cour d’appel Limoges (FR) 26.09.2013 - 12/01243, unalex FR-2494
Cour de Cassation (FR) 06.07.2016 - 15-14664, unalex FR-2477
Cour d’appel (LU) 15.03.1995 - 17052, unalex LU-95
Cour d’appel (LU) 30.11.2000 - 24425 - V. ./. R., unalex LU-209
Ephetio Athens (GR) 02.12.2004 - 8237/2004, unalex GR-151
OLG Köln (DE) 06.10.1994 - 7 W 34/94, unalex DE-129
OLG Düsseldorf (DE) 07.12.1994 - 3 W 277/94, unalex DE-527
OLG Hamm (DE) 27.06.1996 - 1 W 102/95, unalex DE-186
OLG Düsseldorf (DE) 13.11.1996 - 3 W 347/96, unalex DE-233
Landesarbeitsgericht Köln (DE) 06.11.1998 - 11 Sa 345/98, unalex DE-2483
OLG Brandenburg (DE) 27.08.1998 - 8 W 274/98, unalex DE-188
OLG Karlsruhe (DE) 06.12.2001 - 9 W 30/01, unalex DE-147
OLG Saarbrücken (DE) 03.03.2004 - 5 W 212/03-52, unalex DE-326
OLG Dresden (DE) 07.09.2004 - 3 W 0916/04, unalex DE-465
OLG Dresden (DE) 26.07.2004 - 3 W 0745/04, unalex DE-464
OLG Düsseldorf (DE) 29.09.2006 - I-3 W 156/06, unalex DE-599
Landesarbeitsgericht Hessen (DE) 01.09.2008 - 16 Sa 1296/07, unalex DE-2529
OLG Frankfurt (DE) 21.09.2011 - 26 W 24/10, unalex DE-2558
BGH (DE) 14.06.2012 - IX ZB 183/09, unalex DE-2785
Nejvyšší soud (CZ) 24.03.2011 - 20 Cdo 5180/2006, unalex CZ-25
OGH (AT) 22.02.2007 - 3Ob233/06w, unalex AT-359
Sąd Najwyższy (PL) 07.11.2008 - IV CSK 256/08, unalex PL-62
Tribunal da Relação Porto (PT) 11.10.2004 - 0454490, unalex PT-37
Supremo Tribunal de Justiça (PT) 09.07.2015, unalex PT-232
Tribunal da Relação Porto (PT) 05.06.2008 - 0833213, unalex PT-158
Tribunal de première instance Bruxellles (BE) 25.05.2005 – 2004/14192/A unalex BE-184
Ústavní soud (CZ) 25.04.2006 - 709/2005, unalex CZ-8
Vrhovno sodišče Republike Slovenije (SI) 12.10.2005 - Cp 10/2005, unalex SI-3

32
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Francq S, ‘Article 34’ in Ulrich Magnus, Peter Mankowski, and Alfonso-Luis Calvo Caravaca
(eds), Brussels I Regulation (2nd rev edn, Sellier European law Publishers 2012)
Spickhoff A, Der ordre public im internationalen Privatrecht: Entwicklung – Struktur –
Konkretisierung (Neuwied 1989)
Stone P, EU Private International Law: Harmonization of Laws (Edward Elgar Publishing 2008
Contribution to edited books
Kecskés L, ‘Could lawful conduct violate public policy? – False domestic interpretation in
Hungary should be corrected with reference to the jurisprudence of the European Court of
Justice’ in: Tomislav Boric et al. (eds.), Festschrift Posch II (Universität Graz 2011)
Meeusen J, ‘Rome II: A True Piece of Community Law’ in John Athern and William Binchy
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Private International Law: State of the Art and Future Developments (Wolters Kluwer 2019)
Dissertations
Corthaut T, ‘EU ordre public’ (LL. D. thesis, Katholieke Universiteit Leuven 2009)
Hazelhorst M, ‘Free movement of civil judgements in the European Union and the right to a
fair trial’ (PhD thesis, Erasmus University Rotterdam 2016)
Thoma I, ‘Die Europäisierung und die Vergemeinschaftung des nationalen ordre public‘ (LL.
D. thesis, Universität Hamburg 2005)
Journal Articles
Beaumont P and Johnston E, ‘Can Exequatur be Abolished in Brussels I Whilst Retaining a
Public Policy Defence?’ (2010) 6(2) Journal of Private International Law 249
Bermann G, ‘Navigating EU Law and the Law of International Arbitration’ (2012) 28(3)
Arbitration International 397
Brand R, ‘The European Union’s New Role in International Private Litigation’ (2005) 2(2)
Loyola University Chicago International Law Review 277
Hoško T, ‘Public Policy as an Exception to Free Movement within the Internal Market and the
European Judicial Area: A Comparison’ (2014) 10(1) Croatian Yearbook of European law and
Policy 189

33
Karydis G, ‘L’ordre public dans l’ordre juridique communautaire: un concept à contenu
variable’ (2002) 38(1) Revue trimestrielle de droit européen 1
Keresteš T, ‘Public Policy in Brussels Regulation I: Yesterday, Today and Tomorrow’ (2016)
8(2) 77
Kessedjian C, ‘Public order in European law’ (2007) 1 Erasmus Law Review 25
Mills A, ‘The Dimensions of Public Policy in Private International Law’ (2008) 4(2) Journal of
Private International Law 201
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EU civil matters: remarks on some recent Polish-German cases’ (2022) 18(2) Journal of Private
International Law 317
Prechal S, ‘Community Law in National Courts: The Lessons from Van Schijndel’ (1998) 35(3)
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Prechal S and Shelkoplyas N, ‘National Procedures, Public Policy and EC Law: From Van
Schijndel to Eco Swiss and Beyond’ (2004) 5 European Review of Private Law 589
van Hoek A, ‘Case C-7/98, D. Krombach v. A. Bamberski, Judgment of the Full Court of 28
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Documents issued by EU institutions
Commission, ‘Amended proposal for a European Parliament and Council Regulation on the
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Commission, ‘Proposal for a Regulation of the European Parliament and of the Council on
jurisdiction and the recognition and enforcement of judgements in civil and commercial matters
(Recast)’ COM (2010) 748 final
Commission Staff Working Paper ‘Impact Assessment, Accompanying document to Proposal
for a Regulation of the European Parliament and of the Council on jurisdiction and the
recognition and enforcement of judgements in civil and commercial matters (Recast)’ SEC
(2010) 1548 final
Committee on Legal Affairs, ‘Report on the proposal for a regulation of the European
Parliament and of the Council on the law applicable to non-contractual obligations (“Rome II”)’
[2005] COM(2003) 0427 <https://www.europarl.europa.eu/doceo/document/A-6-2005-
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Committee on Legal Affairs, ‘***I Report on n the proposal for a regulation of the European
Parliament and of the Council on jurisdiction and the recognition and enforcement of judgments
in civil and commercial matters (recast)’ [2012] COM (2010) 0748
<https://www.europarl.europa.eu/doceo/document/A-7-2012-0320_EN.html>
Blogs
‘English Custody Orders Violate Greek Public Policy if the Parents Form a Same-Sex Couple’
(EAPIL, 3 February 2021) <https://eapil.org/2021/02/03/english-custody-orders-violate-greek-
public-policy-if-the-parents-form-a-same-sex-couple/> accessed 02 May 2023
‘The Italian Constitutional Court Asked to Rule on Surrogacy Arrangements and Public Policy’
(EAPIL, 28 September 2020) <https://eapil.org/2020/09/28/the-italian-constitutional-court-
asked-to-rule-on-surrogacy-arrangements-and-public-policy/> accessed 02 May 2023
‘The Italian Court of Cassation on Islamic Repudiation and Public Policy’ (EAPIL, 18
September 2020) <https://eapil.org/2020/09/18/the-italian-court-of-cassation-on-islamic-
repudiation-and-public-policy/> accessed 02 May 2023
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International Law <https://opil-ouplaw-com.proxy-
ub.rug.nl/display/10.1093/law:epil/9780199231690/law-9780199231690-
e1448?rskey=c5my97&result=1&prd=MPIL> accessed 20 April 2023
Grajdura W, ‘Free Circulation of Judgements’ (European Commission 2016)
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Instruments of Private International and Procedural Law’ (Policy Department C: Citizens’
Rights and Constitutional Affairs, European Parliament 2011)
Hess B, Pfeiffer T and Schlosser P, ‘Report on the Application of Regulation Brussels I in the
Member States’ (Study JLS/C4/2005/03, Ruprecht-Karls-Universität Heidelberg 2007)
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No 1215/212 on jurisdiction and the recognition and enforcement of judgements in civil and
commercial matters (Brussels Ia Regulation)’ (Publications Office of the European Union 2023)
Report on the Convention on jurisdiction and the enforcement of judgements in civil and
commercial matters (Signed at Brussels, 27 September 1968) [1979] OJ C59/1 (Jenard Report)

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Appendix

36
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