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Horizontal Solange Modified? Judicial Cooperation in Civil and Commercial Matters in the Rule of Law Crisis

This post was written by Felix M. Wilke.

Many papers and posts have already appeared on the EU rule of law crisis, in particular on serious doubts regarding the independence and impartiality of the judiciary in certain Member States. In light of the recent judgment against Poland (C-204/21), more are likely to follow. For the most part, the discussion concerns potential reactions under primary law and the effects the crisis already has had on the European Arrest Warrant. There have been some predictions that the crisis also would affect judicial cooperation in civil and commercial matters (e.g. by Frąckowiak-Adamska). Indeed, how could it not? In this post I want to flag some issues and ideas to be fleshed out in a later publication, based on a presentation I gave at the IAPL Summer School 2023. As always, comments are very much welcome.

Mutual Trust and its Limits

It all goes back to mutual trust. According to the CJEU, mutual trust in particular means the presumption that other Member States comply with EU law and with the Charter of Fundamental Rights (Opinion 2/13). If we know or have very good evidence that another Member State’s judiciary is not independent or impartial, and the Member State thus cannot guarantee the right to a fair trial, this assumption seems to have been rebutted. One can hardly do business as usual, i.e. continue to apply instruments like Brussels Ibis that are based on mutual trust as if nothing had changed.

We actually have famous precedent for that from the field of judicial cooperation in criminal matters. In LM, the Court of Justice held that the “real risk” of a breach of the fundamental right to an independent tribunal “is capable of permitting the executing judicial authority to refrain, by way of exception, from giving effect to a [European Arrest Warrant]”. Granted, Article 1(3) of the Framework Decision on the European Arrest Warrant contains the express admonition that the Decision does not modify the Member States’ obligation to respect fundamental rights – even though the immediately prior provision of paragraph 2 requires them to execute any European Arrest Warrant based on mutual recognition.

In one area based on mutual trust, then, courts in one Member State can under certain circumstances review whether trust is actually warranted. This has been dubbed “horizontal Solange” (Canor), as opposed to “reverse Solange” (von Bogdandy et al.) and the good old regular “Solange” (Germany’s Constitutional Court). As long assolange – there are no systemic violations of the rule of law, each Member State should cooperate with the others. So, should we pull a “horizontal Solange” in civil and commercial matters? Should it perhaps be a “modified horizontal Solange”, adjusted to the specifics of civil proceedings?

Horizontal Solange as Part of Public Policy Reservations

One obvious answer is that we have been doing so in civil and commercial matters, anyway. For the Brussels Regime has always contained a public policy reservation (now Art. 45(1)(a) Brussels Ibis). Public policy is the classic tool of trust management (M. Weller). It is accepted that violations of procedural fundamental rights in another Member State can trigger this reservation. While Brussels Ibis lacks a clear statement on fundamental rights like Article 1(3) Framework Decision on the European Arrest Warrant, the obligation to respect the fundamental rights of the Charter exists as a matter of course when Member States are “implementing” EU law (Article 51(1) of the Charter). Thus, even if the vague Recital 38 Brussels Ibis did not exist, public policy must be interpreted against the backdrop of the Charter. More importantly, even instruments of judicial cooperation in civil and commercial matters without a written public policy reservation must be interpreted as allowing a review of potential fundamental rights violations in another Member State.

But to rely on public policy does not come without obstacles. Should the burden of proof rest with the applicant even where there are systemic deficiencies in another Member State? Should an application even be necessary? The seriousness of the rule of law problems and their relation to the public interest might suggest a negative answer, but this would likely ask too much of those tasked with enforcing foreign judgments, in particular non-judicial bodies. And what about the unwritten condition of exhaustion of all remedies in the Member State of origin (Diageo Brands)? Some would say that it does not make sense, period. At least it does not make sense if the foreign judiciary as such does not meet the standards of independence and impartiality. Systemic deficiencies obviate the exhaustion requirement as it itself is based on mutual trust.

Doubts about the Existence of “Courts” and “Judgments”

Speaking of independence and impartiality: Has not the CJEU held in Pula Parking – even though the actual problem was that Croatian notaries did not conduct inter partes proceedings – that these two features characterize “courts” for the purposes of Brussels Ibis? Without them, a national body is no “court”. Without being a “court”, it cannot give “judgments” within the meaning of Article 2(a) Brussels I bis. This calls into question already the scope of application of Chapter III of Brussels I bis (and, thinking it through to the end, also the application of the lis pendens rules). If this is not met, there would be no recognition and enforcement. The result thus would seem to be the same as after a successful application relying on public policy.

The scope of application, however, must be checked ex officio, and a failure to exhaust national remedies in the Member State of origin clearly could not change the nature of body that gave the decision. Hence, the requirements could be quite different from the public policy reservation. On the other hand, again, to require an assessment of the independence and impartiality of other Member States’ bodies in every single case would put the institutions in the Member State addressed in over their heads.

Exploiting Private Parties?

Moreover, one could characterize this approach with some merit as exploiting civil and commercial matters, ultimately: the parties of such matters to address a crisis not of their making. I feel a certain unease about this, and I do not think I am the only one who feels that way. Granted, to make a Member State a less attractive forum could be an effective tool of bringing about change in that State. And it does seem paradoxical to continue to apply an instrument of mutual trust where serious doubt has been cast on this trust.

Yet we can hardly blame a claimant for having pursued her claim in a certain Member State, even less so when jurisdiction in that State was based on entirely uncontroversial grounds, perhaps even on Brussels Ibis itself. To put a stop to EU judicial cooperation in civil matters without an individual violation of the defendant’s/debtor’s fundamental rights also would be questionable from the perspective of the claimant’s/judgment creditor’s fundamental rights. The ECtHR has recognized that the enforcement (even) of foreign judgments is an integral part of the guarantee of Article 6(1) ECHR (Hornsby v. Greece, McDonald v. France, Avotiņš v. Latvia). Then again, if one negated the scope of application of Brussels Ibis, at least national rules of recognition and enforcement could still apply.

Tentative Conclusions

I am inclined to let national bodies operate on the prima facie basis of a foreign “judgment” for now. There is less risk of legitimizing such bodies this way than accepting preliminary references from them (as the CJEU does, C-132/20). A potential gamechanger would be a decision under Article 7(2) TEU. Yes, such a decision seems unlikely. But the inadequacy of solutions under primary law do not imply the necessity of sweeping modifications of the rules for cross-border proceedings.

I would relegate the rule of law issues to the public policy clauses (whether express or implied). This implies court proceedings upon application (typically) of the debtor. The interpretation and application of the public policy reservation must sufficiently accommodate the applicant’s right to a fair trial. For example, if the applicant can establish systemic rule of law violations, she must not have exhausted all remedies in the State of origin. One could also be more liberal with the requirement of “manifest” violations. Additionally, I would advocate for a similar unwritten exception to the lis pendens rules, in line with LM. If there is the “real risk” that a later judgment from another Member State could not be recognized and enforced due to public policy, there is no point in staying one’s own proceedings. It will be hard to establish this real risk, to be sure. But that is not necessarily bad – civil and commercial matters are not the right place to try to solve systemic problems.

1 comment on “Horizontal Solange Modified? Judicial Cooperation in Civil and Commercial Matters in the Rule of Law Crisis

  1. Alja Ringhausen

    Thank you very much for your well appreciated proposals, as regards the Rule of law crisis in civil procedural crossborder matters and how to improve devastating situations of EU citizens, who are deprived currently not only in Poland / Hungary, but also in for ex. Belgium from access to court in their crossborder civil matters.

    As the number of cases of the latter is deemed to be much larger compared to penal crossborder cases.

    Belgium did not transpose correctly CE directive Nr. 8/2003 legal aid in civil cases.

    In addition the belgian Court of Cassation president (!) felt frivolously enough
    to himself revive longterm – for a reason abrogated and repealed CE regulation 1348/2000 in 2018 ff. with the intent of that belgian supreme court

    – to deprive that way willfully detrimentally

    EU citizens in their civil cases from their legal judge (e.g. CJEU judge).
    with respect to their obviuous needs
    to place prejudicial questions to Curia Luxembourg Judges

    as regards the countrywide 12 years long non-transposition of CE directive Nr. 8/2003 on belgian EU territory,

    as regards the illegal revival of longterm abrogated CE reg 1348/2000 by belgian supreme court of Cassation, charged with the duty to provide for unity of belgian court hierarchy jurisprudence.

    as regards the illegal revival of unionwide prohibited fictititous domestic belgian service methods in 2017ff.

    The latter being inter alia clearly a matter of invalidity of EU law
    – for which the legal judges at Curia Luxembourg are clearly exclusively only competent.

    Thus, if belgian EU member state supreme court judge president intentfully revives long term abrogated and repealed CE regulation Nr. 1348/2000 law,
    on its own account – without asking CJEU judges for approval,
    in order to bugger off that way
    EU citizens from access to crossborder jurisdiction,

    than there is no equality before the law for EU citizens in civil cases and the promise of upholding the values is no more than an empty dead letter phrase.

    Neither is there any reason to mutually trust into crossborder belgian jurisdiction in civil cases.

    Yet this was not any hidden move from part of belgian supreme court jurisdiction.

    Right in front of the house door of the guardians of the Treaty (EU Commission) the belgian supreme court President had proclaimed on belgian telly in 2015, that Belgian Member state of the EU had turned into a “ROGUE STATE”, not being able any longer to apply the law (“EU law of the land” – according to Koen Lenaerts) owed to undue influcence of the executive taken on the judiciairy with the aim of budget cuts:

    Belgium is getting closer to a rogue state, says the country’s top magistrate
    Valentine De Muylder
    Published on Sunday 15 May 2016 at 1:50 pm

    A year ago, the judiciary launched an appeal to the nation. Budget cuts were threatening the judiciary, they denounced.
    Since then, the situation has deteriorated and the anger of the magistrates has not stopped rising. The situation has deteriorated since then and the anger of the magistrates has continued to grow, even to the ears of Chevalier Jean de Codt, first president of the Belgian Court of Cassation, who exceptionally came out of his reserve on the set of Décodeurs this Sunday morning.

    “We have the feeling that the law is no longer respected”


    “. “We have the feeling that the executive continues to develop a strategy of circumventing the law, of disobeying the law.
    He noted that the administration of justice now reserves the power to no longer publish vacancies, and therefore to no longer fill the vacancies provided for by the law, without the approval of the administration of finance:

    “We are in the process of undermining the lifeblood of justice, which is its human resources”.
    “A judge is only a judge to dispense justice, not to suspend it.”

    “Justice and the State are like a sheet of paper
    “What respect can we give to a State that is trading away its most archaic function, which is to dispense justice?” asks the Chevalier de Codt.

    “This state is no longer a state of law, but a rogue state.

    In his view, as litigation explodes and staff numbers decrease, the fundamental right of access to the judge is endangered.
    Belgium could be condemned internationally for violating the right to a fair trial and the principle of reasonable time.

    Infringement complaints logded, run into empty, on willful intent of the EU Commission, ignoring for years, what is happening right in front of its old member states house door in Brussels, with written replies to “deeply regret” the violations of the values in belgian member state”. Rather its focus is placed on chasing solely Hungary and Poland for systemic deficiencies.

    And again the number of EU citizens detrimentally harmed from denial of access to crossborder belgian civil jurisdiction is deemed much larger, compared to penal jurisdiction.

    Nothing much has changed until 2023. The EU directive Nr. 8/2003 is still not transposed correctly into belgian national law.

    Given that not even a single penny budget is established, by belgian SPF Justice to provide for cost coverage of translation costs required into benefit of french language illiterate EU citizens
    (contrary to CJEU case law C-670/15). EU citizens in civil cases don´t even get a translator and in result are deprived from their right to get heard by belgian jurisdiction.

    And this was not hidden to the EU Commission – guardian of the treaty either:

    See 2012 publication: QRVA 53 084 09-10-2012

    The Central Public Service Legal Assistance Department of the FPS Justice is authorized to receive applications for legal assistance and legal aid from a resident of another member state of the European Union. This service is also authorized to send such requests from Belgian residents for the territory of any other member state of the European Union.

    When the Legal Assistance Office receives such a request, it transmits it to the SPF Justice.
    The SPF Justice, in turn, after translating the request into the language recognized by the State of destination, forwards it to the competent authority in that country within fourteen days.

    Our legal system is increasingly confronted with cross-border disputes.

    More and more litigants are also turning to second-line legal assistance.

    1. How many applications for legal assistance were received, over a period of the last five years, by the central government legal aid office from residents of another Member State?

    2. How many files were received by the central public service legal assistance, over a period of the last five years, from Belgian residents for the territory of another Member State of the European Union?

    3. What is the federal government’s expenditure, over a period of the last five years, on legal assistance for these cross-border disputes?

    4. How much did the Federal Government pay in translation costs over a period of the last five years?

    Reply of the Minister of Justice of October 02, 2012,
    to the question No. 188 of Mrs. the People’s Deputy Kristien Van Vaerenbergh of January 13, 2012 (N.):
    QRVA 53 084 09-10-2012, p.191

    3. The available data do not allow an answer to this question.

    4. The statistics of the Translation Department do not make it possible to determine the translation costs incurred by the Federal State in connection with cross-border legal aid applications.
    However, it may be appropriate to clarify that in accordance with Article 13, 2, of Council Directive 2003/8/CE of January 27, 2003, “Legal aid applications shall be completed, and accompanying documents translated:
    (a) into the official language or one of the official languages of the Member State of the competent receiving authority which is one of the languages of the Community institutions; or
    (b) into another language which that Member State has declared that it can accept in accordance with Article 14(3).”


    Discrimination of EU citizens involved in crossborder civil cases can´t get much larger.
    Given further, that belgian lawyers bar associations have replaced country wide the CE directive legal aid request multilingual standard form with its own re-designed domestic legal aid standard form request, to trickfully tick in EU citizens, as this avoids countrywide to take up the translation costs required for the evidential foreign language documents to attach to the legal aid standard form request, when serving proof for sufficient chances for success of such crossborder civil cases legal aid requests.

    All of the above with the belgian legislature´s and executives intent to perforce french language illiterate EU citizens to mind mandatory belgian language law 1935 provisions, stipulating, that only french / or flem. court languages of the various belgian court districts are to be used by EU citizens, in every event where legal aid in civil cross-border cases is needed, to gain at all access to crossborder belgian courts.

    The time line of belgian governmental publications, referring to the denial of access to crossborder belgian jurisdiction – owed to published maltransposition of EU law
    – is long enough to conclude manifest systemic infringements of the values, the EU rule of law,
    as regards CE directive Nr. 8/2003 non-transposition and belgian ignorance towards the Case law of CJEU covers a period of meanwhile 13 years, with the result of EU citizen´s deprivation of access to belgian civil jurisdiction in same systemic detrimental impact.

    The fresh FIDE 2023 national report Belgium, confirms:

    “While the issue of judicial independence as such is not subject to much contestation
    in Belgium, it is rather the lack of means allocated to the judiciary that seems to pose a threat to judicial protection in Belgium47.”

    47 See, for instance, the recent editorial of the review published by the National Judges’ Association,
    Justine, 2022, p. 2 and “La justice sonne l’alarme sur son sous-financement, La Libre, 2022, available at

    As did 2018 national report Belgium (C. Rizcallah):

    “However, with the financial crisis, getting legal aid is becoming increasingly difficult.

    Moreover, as Unia pointed out in its 2017 evaluation report, it is very difficult for the
    applicants who don’t fall within the conditions of legal aids to bring a claim before courts
    because of the numerous obstacles of such procedures (very high costs and the payment
    of procedural indemnity in case of dismissal).”

    Sadly however the EU Commission contents itself to confirm:

    – Judicial cooperation in civil and criminal matters is insufficient and access to justice across Member States is still difficult.

    The general principal of mutual trust in civil crossborder cases is dead as a rotten fishbone and sounds rather like a threat to EU citizens in civil cases, where dead letter rights are evidently set to fail from scratch, as long as the guardian of the treaty does not enact its discretion dutifully if it comes to systemic infringement follow up against value breaching old member states in civil cases.
    But rather mocks at EU citizen´s, pending on the guarantees of CE directive Nr. 8/2003 guarantees, with its guardian´s more repelling than inviting written advice, to rather lodge an extracontractual liability claim against belgian state in front of crossborder belgian jurisdiction for infringement of EU law.

    While precisely this option is barriered for those non-elite, non-financially well off EU citizens, in the event when pending on crossborder legal aid guarantees – for meanwhile 13 years non-transposed countrywide by belgian legislator.

    Remininscent memries to former prevailing constitutional guarantees prior to the entry of the above EU secondary law violations in civil cases, committed systemically by belgian jurisdiction, pan up, as a weak shine of basic rights lost.

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