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

Under Articles L. 511-1, para. 1, and R. 511-1, para. 2, of the Code of Civil Enforcement Procedures, the creditor is required to obtain prior authorization from the judge to implement a protective measure on the debtor's assets. The enforcement judge has exclusive jurisdiction in this matter, except when the seizure involves foreign aircraft or aircraft whose owner is not domiciled in France, for …

Court authorization

Under Articles L. 511-1, para. 1, and R. 511-1, para. 2, of the Code of Civil Enforcement Procedures, the creditor is required to obtain prior authorization from the judge to implement a protective measure on the debtor's assets. The enforcement judge has exclusive jurisdiction in this matter, except when the seizure involves foreign aircraft or aircraft whose owner is not domiciled in France, for which concurrent optional jurisdiction is recognized for the president of the commercial court . However, Article L. 511-2 of the same code provides for different scenarios where authorization is not necessary.

This is first the case “when the creditor relies on a writ of execution or a court decision that has not yet become enforceable.” In this situation, it is up to them to mention the title under which the seizure is carried out, without being required to attach it . A creditor is thus exempt from seeking prior authorization from the court to carry out a protective seizure when they rely on a judgment rendered by the Court of Cassation, which constitutes a writ of execution , or on a foreign decision even if not yet enforceable , noting that since the application of Regulation No 1215/2012 of 12 December 2012 , a decision rendered in a Member State, which is enforceable in that State, enjoys enforceability in other Member States without the need for a declaration of enforceability and automatically authorizes the implementation of protective measures provided by the law of the requested Member State. The same applies to a creditor who relies on an arbitral award , which constitutes a court decision  and, when rendered, has the authority of res judicata concerning the dispute it resolves, in accordance with Article 1484 of the Code of Civil Procedure, or, in matters of international arbitration, an arbitral award with exequatur, whose provisional enforcement has been suspended . Prior authorization from the court is also not necessary when the creditor relies on a writ of execution resulting from a commercial lease concluded in notarial form , or a loan contract in authentic form . However, an order for payment, which only constitutes a court decision in the absence of opposition within one month of its service, cannot serve as a basis for a protective seizure when it has not been served . The authorization of the enforcement judge also becomes mandatory, even if the creditor has a writ of execution or a court decision that has not yet become enforceable, when the measures must be carried out in a place used as the debtor's residence. The Court of Cassation justifies this exception by the need to protect the constitutionally valued right to respect for private life and the inviolability of the home, enshrined in Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms . Finally, it should be noted that Article 14, II of Law No 2020-1379 of 14 November 2020 authorizing the extension of the state of health emergency and providing various measures to adapt to the crisis, until 16 February 2021 inclusive, prohibited landlords reaching certain thresholds from carrying out protective measures without the authorization of the judge, by way of derogation from Article L. 511-2 of the Code of Civil Enforcement Procedures .

Next, authorization is not required “in the event of non-payment of an accepted bill of exchange, promissory note, or check” . This exception applies both to the issuer of the note and to the guarantor on behalf of the issuer, who is liable in the same manner as the person for whom they have provided a guarantee .

Finally, the enforcement judge's role is not required “in the event of non-payment of rent that remains unpaid as long as it results from a written lease contract for real estate.” The Lyon Court of Appeal reiterated this principle by considering that prior authorization from the judge to carry out a protective seizure is not necessary for the recovery of unpaid rent and service charges, provided they result from a written lease contract .

Cass. 2e civ., 2 February 2023, LawLex202300001850JBJ, JCP G 2023, No 601, obs. DELEBECQUE.

CA Paris, 24 May 2018, LawLex202300007627JBJ.

Cass. 2e civ., 13 September 2007, LawLex202300001590JBJ.

Cass. 2e civ., 17 September 2020, LawLex202200010418JBJ.

See, for illustrations, CA Bordeaux, 3 November 2022, LawLex202300006584JBJ; CA Paris, 16 March 2023, LawLex202300006560JBJ.

Cass. com., 19 May 2015, LawLex202300001591JBJ.

CA Lyon, 19 January 2023, LawLex202300006550JBJ.

Cass. 2e civ., 17 February 2011, LawLex202300001592JBJ.

CA Paris, 4 March 2021, LawLex202300006566JBJ.

Regulation No 1215/2012 of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, Art. 39 and 40.

CA Caen, 4 March 2014, LawLex202300007705JBJ.

Cass. 2e civ., 12 October 2006, LawLex202300001598JBJ, which quashes the appeal judgment that holds, to annul the disputed protective seizures, that an arbitral award, relied upon by the creditor to carry out the measures in question without prior authorization from the court, is not a judicial decision.

CA Paris, 24 May 2018, LawLex202300007627JBJ, prec.

CA Bordeaux, 3 November 2022, LawLex202300006584JBJ.

CA Montpellier, 3 December 2020, LawLex202300006625JBJ.

5. Civil Enforcement Procedures

97. Court authorization

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97. Court authorization

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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