Court of Cassation reaffirms importance of constitutionally compliant interpretation in bond issues

In a recent ruling by the Court of Cassation, dated March 10, 2023, case number C.22.0126.N, a significant decision was made in the case NV Proximus versus Two-Way Media Ltd. This decision concerns the cautio iudicatum solvi, a bond in civil litigation. This rule, which can oblige foreign plaintiffs in civil proceedings to provide a bond, was the subject of discussion due to potential conflict with the constitution. The judgment held that the cautio iudicatum solvi should not be discriminatory based on nationality but should consider the presence of assets in Belgium.

The Constitutional Court had previously determined that Article 851 of the Judicial Code, which regulates this bond, is in violation of the constitution because it makes an unjustified distinction based on nationality. The Court of Cassation has now confirmed that judges must apply this article in a constitutionally compliant manner. This means that a bond can be demanded from any plaintiff, regardless of nationality, if they live or reside abroad and have insufficient assets in Belgium to cover the costs of a conviction, unless an international treaty stipulates otherwise.

This decision emphasizes the importance of a constitutionally compliant interpretation of laws by the judiciary and provides clarity in the application of the cautio iudicatum solvi.

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