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

It follows from the joint reading of Articles L. 512-1, para. 1, and R. 512-1 of the Code of Civil Enforcement Procedures that the judge may, at any time, order the release of the protective measure if it appears that the substantive conditions prescribed by Article L. 511-1 or the formal and time conditions provided for in Articles R. 511-1 to R. 511-8 are not met. The option to request the relea …

Conditions

It follows from the joint reading of Articles L. 512-1, para. 1, and R. 512-1 of the Code of Civil Enforcement Procedures that the judge may, at any time, order the release of the protective measure if it appears that the substantive conditions prescribed by Article L. 511-1 or the formal and time conditions provided for in Articles R. 511-1 to R. 511-8 are not met. The option to request the release of a protective measure is available to the debtor whether or not the measure was authorized by the judge. The parties are heard or summoned, even in cases where Article L. 511-2 allows the measure to be taken without the judge's authorization . The ability to contest a protective seizure measure is not limited to the debtor: the third party subject to the seizure also has standing to make such a contestation, by way of an action for the release of the seizure . Pursuant to Article R. 512-1, para. 2, it is incumbent upon the creditor, and not the debtor subject to the seizure who requests the release of the protective measure, to prove that the required conditions are met .

To retract the authorization given to the creditor to implement a protective measure and order its release, the judge must verify if the measure is based on a claim that appears well-founded in principle, on which there are threats of non-recovery. In this context, the judge must consider the moment when ruling, not the date of the measure's implementation or the retraction application, to assess if the cumulative conditions prescribed by Article L. 511-1 are still met. Just as when authorizing the measure, it is not the judge's role, when ruling on a request for the release of protective seizures, to establish proof of a liquid and due claim, much less to assess its amount. The release of a protective seizure is required when the creditor does not demonstrate the principle of a claim that appears well-founded in principle and/or the circumstances likely to threaten its recovery. This is the case when the creditor does not provide proof of the appearance of the claims invoked, when the value of the property subject to the measure amply guarantees the payment of the claim, or when the judge relied on the safeguarding of the guaranteed company to assess the threats to the recovery of the claim, while the measure was taken against the guarantor. Conversely, the judge cannot order the release of protective seizures implemented by the holder of a claim appearing well-founded in principle when no recent data is available on the company's results. The same applies when a landlord justifies a principle of claim and circumstances likely to threaten recovery, which result from the tenant's declining accounting results, the opacity of its financial situation, and its failure to declare its monthly turnover despite the late penalties provided for in case of non-performance.

Although the texts do not expressly specify it, the Court of Cassation also considers that a measure based on the conditions of Article L. 511-1 may be subject to a request for release when it has been carried out without prior authorization from the court while the creditor did not have a regular writ of execution . Conversely, the absence of invalidity of a protective seizure does not preclude the court from ordering its release when the conditions set by Article L. 511-1 are not met .

When a protective seizure has been carried out with the judge's authorization, the application for release is brought before the judge who authorized the measure , even if proceedings on the merits have been initiated before the application for release . However, pursuant to Article R. 512-2 of the Code of Civil Enforcement Procedures, the application for release of a protective measure taken without prior authorization from the judge must be brought before the enforcement judge of the place where the debtor resides. If the measure is based on a claim falling within the jurisdiction of a commercial court, such an application may be brought, before any trial, before the president of the commercial court of that same place.

In order to rule on the merits of the challenge to the interim protective measures initiated, the enforcement judge, who, pursuant to Article L. 213-6, para. 2, of the Code of Judicial Organization, has jurisdiction over challenges related to the implementation of interim protective measures, even if they concern the merits of the case, unless they fall outside the jurisdiction of the judicial courts, may rule on the existence of circumstances suggesting that the debtor acted in fraud of the creditor's rights  or on the fictitious nature of companies against which such measures have been taken . This rule also applies to the president of the Commercial Court who, in accordance with Article L. 721-7 of the Commercial Code, may, concurrently with the enforcement judge, have jurisdiction over interim protective measures when they aim to preserve a claim within the jurisdiction of the commercial court and are requested before any trial. According to the Court of Cassation, the refusal of the president of the Commercial Court to retract his previous order authorizing a protective seizure does not prevent the judges hearing the case on the merits from ordering the release of the seizure at any stage of the proceedings .

The decision to release taken pursuant to Article L. 512-1 does not have retroactive effect: the interim protective measure, for which the release has been ordered, retains its effect of interrupting the limitation period .

Within fifteen days from the notification of the decision rendered, an appeal may be filed .

Finally, Article R. 512-3 of the Code of Civil Enforcement Procedures provides for other challenges, which “are brought before the enforcement judge of the place where the measure is executed.” These challenges mainly relate to the enforcement of the interim protective measure, excluding those related to the conditions prescribed by Article L. 511-1, as well as Articles R. 511-1 to R. 511-8. This is particularly the case when the interim protective measure concerns movable property that the debtor disputes ownership of .

Cass. 1re civ., 28 March 2013, LawLex202300001885JBJ.

Cass. 2e civ., 17 May 2023, LawLex202300009748JBJ.

CPC exec., Art. R. 121-19 and R. 121-20, para. 1.

Cass. 1re civ., 11 January 2000, LawLex202300001333JBJ, according to which the court must order the release of a protective measure on movable property when the debtor does not own it, which can be proven by any means.

For an illustration, see Cass. 2e civ., 6 October 2005, LawLex202300007256JBJ.

Cass. 2e civ., 27 February 2014, LawLex202400002841JBJ.

CA Lyon, 19 January 2023, LawLex202300006550JBJ.

CPC exéc., Art. R. 512-2. For an illustration, see CA Aix-en-Provence, 2 March 2023, LawLex202300007495JBJ.

Cass. 2e civ., 26 February 1997, LawLex202300006795JBJ, which approves the courts of second instance, having noted that the president of the Commercial Court had previously authorized a protective seizure, for having decided that it was for this judge to rule on the application for release of property.

Cass. 2e civ., 5 September 2019, LawLex202300008138JBJ: in this case, the debtor, by transferring the assets subject to the protective seizure to a real estate civil company, had intentionally impoverished himself.

Cass. 2e civ., 22 October 2020, LawLex202200011190JBJ.

Cass. 2e civ., 18 January 2001, LawLex202300001892JBJ.

5. Civil Enforcement Procedures

102. Conditions

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102. Conditions

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