Key question in Diageo, Case C-681/13 is whether the fact that a judgment given in the State of origin is contrary to EU law (in the case at issue; trademark law) justifies that judgment’s not being recognised in the State in which recognition is sought, on the grounds that it infringes public policy (‘ordre public’) in that Member State. Precedent for Diageo did not look good.
‘Public policy in the Member State in which recognition is sought’, is by its very nature a matter for the courts of that Member State to define, however the ECJ has held that the nature of the JR necessarily implies that the ECJ has to exercise a degree of control. It has held that the clause on public policy may be relied on only in exceptional cases. The possibility that the court of the State of origin erred in applying certain rules of EU law, including free movement of goods and competition law, does not qualify as such: per Case C-126/07 Eco Swiss and Case C-38/98 Renault, that these rules concern Union as opposed to national law, does not as such have an impact on the application of the recognition and enforcement title: Union law needs to be looked at just the same as national or indeed international law.
Szpunar AG refers of course to these judgments, distinguishes them where necessary, and concludes that an error in the application of EU trademark law does not suffice to justify a refusal of recognition. All that is left to Diageo is an action in damages against Bulgaria.