Receiving a letter from a judicial commissioner (formerly a bailiff) for an unpaid bill, whether for rent or consumer credit, raises a legitimate question: does the amount of the debt justify such action? Contrary to popular belief, the law does not set any minimum threshold for its intervention. However, the practical reality is more nuanced. Understanding the role of this ministerial officer and knowing the existing procedures and your rights is essential to navigating this complex process, where the expertise of a lawyer specialising in enforcement procedures can be decisive in determining the best course of action.
The role of the judicial commissioner: from amicable collection to forced execution
The successor to the bailiff, the judicial commissioner is a public and ministerial officer whose duties are clearly defined by law. Their intervention progresses in stages, from negotiation to coercion, in a function that is part of the public service of justice.
Initially, he acts within the framework of amicable debt collection. In the absence of a court order, his powers are limited to those of a debt collection agency or company in the context of its debt collection activities: he sends letters, such as a registered letter or a summons to pay (which remains amicable at this stage), makes contact and tries to negotiate a payment plan. This phase does not require an enforceable title and is often used for small claims.
If the amicable phase fails, the creditor must obtain a court order to proceed with enforcement. This is where the monopoly of the judicial commissioner comes into its own. Armed with a enforcement order (a judgement, an order for payment, a notarial deed), he is the only professional authorised to implement coercive measures to seize the debtor's assets.
The intervention threshold: myths and financial realities
It is essential to remember that there is no legal minimum amount for a judicial officer to intervene. In theory, the answer to the question 'for what sum can a bailiff intervene? is simple: there is no minimum. A creditor can appoint a bailiff for a debt of just a few euros.
In practice, the decision to initiate proceedings is guided by an economic rationale. For a very small claim, the cost of taking action can quickly exceed the sum to be recovered. This is why there are practical thresholds, often between €200 and €500, below which creditors are reluctant to launch full legal proceedings, especially if the debt is not already time-barred.
To facilitate the recovery of small debts, the legislator has introduced a simplified procedure. Article L. 125-1 of the French Code of Civil Enforcement Procedures (CPCE) allows a court commissioner to propose a solution to the debtor for claims of €5,000 or less. If the debtor accepts the principle and terms of payment within the time limit set, often via a repayment plan, the commissioner can issue an enforcement order without going to court, making the process quicker and less costly.
Different collection procedures and types of seizure
When he has a writ of execution, the court commissioner can use several types of seizure to recover the debt. Each type targets a specific category of property:
- La foreclosure involves the debtor's tangible personal property (vehicle, furniture, IT equipment), often at the debtor's home. The purpose of the auction is to convert the assets into cash to pay the creditor. Such a forced sale is a serious coercive measure.
- La input-apprehension makes it possible to recover a specific item of movable property that the debtor is obliged to deliver.
- La foreclosureThis complex and cumbersome procedure applies to real estate (houses and flats).
- La attachmentThis is one of the most common types of debt, targeting sums of money held by third parties on behalf of the debtor, mainly in bank accounts.
Focus on the attachment of earnings and the 2025 reform
Currently, the attachment of remuneration (wages, pensions) is a judicial procedure conducted before the enforcement judge. However, a major reform, resulting from the law of 20 November 2023 and applicable by 1 July 2025 at the latest, will "dijudiciarise" this procedure. Management of the attachment of wages will be transferred entirely to the judicial commissioners, confirming their status as central players. The judge will only intervene in the event of a dispute raised by the debtor or a creditor, which may be appealed. The aim is to speed up the process and standardise enforcement procedures.
Attachment of bank accounts: a complex procedure
La seizure of bank account is a formidable procedure because of its immediate effect. As soon as the deed is served on the bank (the "garnishee"), the sums available in all the debtor's accounts are blocked up to the amount of the debt, including interest at the legal rate and costs. As a credit institution, the bank is obliged to immediately declare the balance of all accounts, whether in credit or in debit. However, there are protective mechanisms for debtors, particularly in specific situations.
The unattainable bank balance (UBS): a protected minimum subsistence level
In order to guarantee debtors a minimum subsistence level, the law has introduced the "Solde Bancaire Insaisissable" (SBI). In accordance with article L. 162-2 of the CPCE, a sum equivalent to the amount of the Revenu de Solidarité Active (RSA) for a single person must be left at the debtor's disposal. This amount cannot be seized, regardless of the origin of the funds, and is applied only once per seizure, to all accounts.
Seizure of a joint account: what consequences for the joint holder?
Seizing a joint account presents particular difficulties. By default, the entire balance of the account is presumed to belong to both joint holders and can therefore be seized, even if only one person is in debt. However, the non-debtor co-holder (the person not affected by the debt) has the right to dispute the claim. They must try to prove the origin and personal nature of the funds in the account (for example, their own wages or inheritances). Case law (Civ. 2e, 21 March 2019) confirms that the burden of proof lies with him. In addition, article R. 162-9 of the CPCE specifically protects the earnings and wages of the debtor spouse, which may be withdrawn from the basis for seizure.
The specific case of business accounts and client funds
Funds held in the course of a commercial or professional activity on behalf of clients (lawyers, estate agents, etc.) cannot in principle be seized by the account holder's personal creditors. However, case law imposes a very strict condition for this protection to apply: third-party funds must be deposited in a bank account dedicated exclusively to this activity and clearly identified. If there is any confusion between the entrepreneur's assets and his customers' funds in the same account, all the sums will be liable to seizure. This is a crucial provision to bear in mind.
Obligations and risks for the garnishee (bank, employer)
The seizing third party (bank, employer) plays a crucial role and incurs liability. Article L. 211-3 of the Code of Civil Procedure imposes an obligation to make an immediate and accurate declaration of the sums held on behalf of the debtor. If the debtor refuses to make a declaration, or makes a late or untruthful declaration, the penalties are severe. Article R. 211-5 of the CPCE provides that the competent court may order the garnishee to pay the debtor's debt himself, unless he can prove a legitimate reason for his default or appeal against the decision.
Court commissioner fees: who pays and how much?
The question of charges is central, and it is important to know the amount that can be claimed. Article L. 111-8 of the CPCE makes a fundamental distinction:
- The enforcement costs (acts carried out with a writ of execution) are payable by the debtor. This includes the collection fee, which is proportional to the amount recovered.
- The costs of out-of-court settlements (prior to any court decision) remain the responsibility of the creditor. The creditor cannot therefore claim them back from you. Please note that certain procedures, such as the statement of facts, have their own rates.
The cost of a procedure is made up of emoluments (the rate of which is regulated), free fees and disbursements. It is essential to understand their distribution and challenge them if necessary. If in doubt, ask the auditor's office for a detailed account or check the costs with the professional bodies free of charge.
News 2024: cancellation of travel expenses tariffs
An important decision by the Conseil d'État on 5 February 2024 annulled, with effect from 1 June 2024, the Order of 2022 which set the rates for the travel expenses of judicial commissioners. This annulment creates legal uncertainty. Pending a new regulatory decree, the invoicing of these specific trips has become a point of vigilance for creditors and debtors alike.
Protecting debtors: what rights do you have and what assets are exempt from seizure?
The law protects debtors by declaring certain assets and claims "unseizable" in order to preserve their dignity and essential needs. These include items necessary for everyday life and work (clothing, bed, table, computer for business), to meet an essential need, as well as most social and family benefits (RSA, family allowances, maintenance payments). Part of salaries and retirement pensions are also protected.
Debtors have a number of rights in the event of proceedings: they can contest the claim before the court (for example, by raising the statute of limitations), ask the court for more time to pay, or, if it is clearly impossible for them to pay their debts, they can file a petition with the court. over-indebtedness file with the Banque de France. This over-indebtedness procedure is the ultimate protection mechanism, and can suspend current seizures.
The writ of execution: the keystone of enforcement
The writ of execution is the essential legal document that authorises the court commissioner to enforce a debt. Without it, no seizure is possible. Article L. 111-3 of the CPCE sets out the list, which mainly includes :
- Court decisions (an enforceable judgment, an order for payment) when they are no longer subject to suspensive appeal (such as an appeal).
- Notarised deeds with an enforcement clause, which allow a bank, for example, to pursue direct recovery of an unpaid loan.
- Certificates issued by the authorities to recover taxes.
Obtaining and serving this title are mandatory steps before any coercive measures can be taken. It should be noted that the recent reform of securities law has also changed the landscape of payment guarantees, making the analysis of these securities even more technical. By reinforcing the effectiveness of certain guarantees (such as the assignment of receivables by way of security, which is often used in the context of business credit), this reform gives creditors more power to obtain and enforce a title. This is a complex area where expert advice is crucial.
Preventing the commissioner's intervention: negotiation and alternatives
The best strategy for debtors is to avoid enforcement. As soon as you receive a summons to pay or even a simple formal notice, it is advisable to contact the creditor or the court commissioner directly. Proposing a realistic payment schedule is often an effective way of suspending legal proceedings. This is the best way of meeting your obligations while avoiding escalation through the courts.
Alternatives such as mediation or conciliation can also be considered to reach an amicable agreement. Acting quickly, in good faith and before any deadlines expire is the best way to prevent escalation and the associated costs. Debt management and the collection process are complex areas. In the event of difficulties, the assistance of a lawyer is often essential to defend your rights and help you find the most appropriate solution. Our firm is at your disposal to analyse your situation.
Sources
- Code des procédures civiles d'exécution (notably articles L111-3, L111-8, L125-1, L162-2, L211-3, R162-9, R211-5)
- Law no. 2023-1059 of 20 November 2023 on the orientation and programming of the Ministry of Justice 2023-2027
- Monetary and Financial Code and Consumer Code
- Case law of the Council of State and the Court of Cassation
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