French Reform On Provisional Enforcement By Law And Why It Matters To Civil And Commercial Disputes Strategy In France

• Published date: 17 September 2020
• Subject Matter: Litigation, Mediation & Arbitration, Arbitration & Dispute Resolution, Court Procedure, Trials & Appeals & Compensation
• Law Firm: Charles Russell Speechlys LLP
• Author: Simone Sancandi

Recent changes to the French Civil Procedure Code significantly enhance the efficacy of judgments, even when an appeal has been filed.

1. To appeal was equal to suspending the effects of judgments...

The French judicial system broadly comprises three "degrees" of jurisdiction allowing the parties to submit their dispute to: (1) first instance tribunals; (2) courts of appeal and, finally, (3) the Court of Cassation.

In general terms, a civil or commercial judgment handed down by a first instance tribunal is expected to become enforceable shortly after having been issued and notified to the parties. This is the position in many other civil law and common law legal systems as well.

But what happens when an appeal is filed against that judgment Should the respondent be able to carry out enforcement operations whilst the appeal is pending?

As a matter of French Law, up until very recently, the answer to this question was negative.

An appeal against a decision rendered by a first instance tribunal would suspend the decision's effects, unless the tribunal had specifically decided otherwise and with a few exceptions, among which was the notable exception of interim proceedings deemed provisionally enforceable (Procédures de référé).

This meant that filing an appeal could be done for tactical purposes as in most cases it would postpone the effects of the first instance judgment for several months, depending on the duration of the appeal proceedings.

At the same time, it also provided a backstop against the risk of having to pay the damages of an already-enforced judgment subsequently reversed by a court of appeal (a situation well summed up by the phrase: "enforcement is pursued at the creditor's own risk"). From the debtor's perspective suspending enforcement guaranteed additional protection and the promise that their case be heard again and possibly more thoroughly.

2. ... but not anymore

Things have recently changed with the entry into force of a new law decree n' 2019-1333 of 11 December 2019 reforming French civil procedure.

Among the major developments brought by this reform, is that:

"The decisions of the first instance shall be provisionally enforceable by law unless the law or the decision issued provides otherwise." - Art. 514 of the French Civil Procedure Code

This principle is called "Provisional enforcement by Law" (Exécution provisoire de droit) and applies to proceedings commenced on or after 1 January 2020.
It means that first instance...