Introduction

Existence of a claim

Issuance of enforcement order (writs of execution)

Existence of seizable assets or claims

Conditions of enforcement

Judicial authority

Other authorities

Competent authorities and persons

Operations

Difficulties in enforcement

Implementation of compulsory enforcement

General regime of enforcement procedures

Concept of penalty

Scope ratione personae

Material scope

Determination of penalty

Competence of judge

Powers of court

Effects of ruling ordering or rejecting penalty

Pronouncement of penalty

Substantive conditions

Procedural conditions

Role and powers of the judge

Effects of liquidation judgment

Liquidation of the penalty

Penalty

Conditions of implementation

Contesting the measures

Ordinary law on protective measures

Protective seizures

Judicial security interests (sûretés judiciaires)

Specific regimes

Interim protective measures (mesures conservatoires)

Seizure of claims for sums of money

Seizure of tangible movable property

Seizure of intangible rights

Enforcement measures on movable property

Real estate seizures

Evictions

Enforcement measures on real estate

Enforcement measures

5. Civil Enforcement Procedures

The Court of Cassation long held that the court could not rely on any criteria other than those expressly included in Article L. 131-4 of the Code of Civil Enforcement Procedures to reduce the amount of the penalty payment imposed. In fact, only the absence of the debtor's wrongful conduct or the difficulties encountered in complying justified a reduction or elimination of the initially imposed pe …

Proportional nature of penalty payment

The Court of Cassation long held that the court could not rely on any criteria other than those expressly included in Article L. 131-4 of the Code of Civil Enforcement Procedures to reduce the amount of the penalty payment imposed. In fact, only the absence of the debtor's wrongful conduct or the difficulties encountered in complying justified a reduction or elimination of the initially imposed penalty payment. The court could not reduce the amount of the penalty payment liquidated “in view of all the circumstances of the case,” after noting that the debtor of the obligation did not justify any particular difficulties in delivering the disputed documents and that the nearly three-month period taken to do so could not be considered a reasonable time . Nor could it rely on “a glaring disproportion between the amount claimed as a penalty payment and the stakes of the dispute.” 

The Court of Cassation has recently revisited these solutions in cases where, for the first time, the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocol No 1 concerning the protection of property rights were invoked. Noting that the penalty payment imposes, at the stage of its liquidation, a financial obligation on the debtor that may affect a substantial interest, the Court of Cassation established the principle that the court ruling on the liquidation of a provisional penalty payment must assess the proportionality of the impact on the debtor's property rights in relation to the legitimate aim pursued. In other words, the court must now verify, concretely, whether there is a reasonable proportionality between the amount at which it liquidates the penalty payment and the stakes of the dispute , without having to consider the debtor's financial capacity .

Cass. 2e civ., 7 June 2012, LawLex202400002680JBJ; 19 March 2015, LawLex202400004391JBJ. See also Cass. 2nd civ., 30 January 2014, LawLex202400004389JBJ, ruling out the possibility of reducing the penalty determined by the first judge to an amount more appropriate to the circumstances and nature of the dispute.

Cass. 2e civ., 26 September 2013, LawLex202400004390JBJ. See also Cass. 2e civ., 25 June 2015, LawLex202400002787JBJ, rejecting the argument based on the excessive nature of the amount claimed.

Cass. 2e civ., 20 January 2022, LawLex202400002683JBJ and LawLex202400002675JBJ.

Cass. 2e civ., 20 January 2022, LawLex202400002397JBJ.

5. Civil Enforcement Procedures

87. Proportional nature of penalty payment

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87. Proportional nature of penalty payment

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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