A court has ordered your debtor to comply with a penalty payment, but nothing has happened. What can you do about it? The astreinte is only a financial threat until it is liquidated. This decisive step transforms the astreinte into a payable debt.
Liquidation conditions
Who can apply for liquidation?
Only the beneficiary of the obligation subject to an astreinte may request its liquidation. The Court of Cassation confirmed this in a ruling on 8 December 2011: a co-owners' association may not request the liquidation of a penalty ordered in favour of certain co-owners only (Civ. 2e, 8 Dec. 2011, no. 10-26.337).
In the case of assignment of a claim, case law has evolved. The assignee may now request liquidation of the astreinte, but only for the period after the debtor was notified of the assignment (Civ. 2e, 7 July 2011, no. 10-20.296).
An important point for trustees is that they cannot act without the prior authorisation of the general meeting. An action to liquidate a penalty payment does not constitute a protective measure (Civ. 3e, 26 March 2003, no. 01-15.385).
When does liquidation take place?
The astreinte may be liquidated even after late performance of the obligation. The Court of Cassation ruled in two decisions of 8 December 2005 that late performance justifies liquidation of the astreinte (Civ. 2e, 8 Dec. 2005, no. 03-19.473 and no. 04-12.643).
Little known fact: a claim for liquidation is time-barred after 5 years under article 2224 of the Civil Code, and not after 10 years like enforceable titles (Civ. 2e, 21 March 2019, no. 17-22.241).
Proof of non-performance of the obligation
The burden of proof varies according to the nature of the obligation:
- For an obligation to do: it is for the debtor to prove that he has performed it (Civ. 2e, 1 Dec. 2016, no. 15-24.502)
- For an obligation not to do: it is for the creditor to prove the breach (Civ. 2e, 19 March 2020, no. 19-12.252)
All means of proof are admissible, but a bailiff's report remains the most solid option. The Court of Cassation fully recognises its validity (Civ. 2e, 22 March 2012, no. 11-14.664).
Jurisdiction to liquidate the penalty payment
Principle: jurisdiction of the enforcement judge
Article L. 131-3 of the Code of Civil Enforcement Procedures sets out a clear principle: liquidation falls within the jurisdiction of the enforcement judge (JEX).
The court has the power to interpret the decisions of other judges. It must clarify unclear obligations (Civ. 2e, 11 March 2010, no. 09-13.636). But beware: interpreting is not the same as modifying. The JEX cannot call into question the original decision.
Exception: judge still seized or having reserved the liquidation
There are two exceptions to the jurisdiction of the JEX:
- When the judge who imposed the astreinte remains seized of the case (pre-trial judge, pre-trial counsellor, etc.)
- When the judge has expressly reserved the right to liquidation
For the second exception, the judge's intention must be explicit. The phrase "it will be referred to us in the event of difficulty" is not sufficient (Civ. 2e, 15 Jan 2009, no. 07-20.955).
An interesting question was recently decided: in the event of an appeal, can the court liquidate an astreinte that the first judge had reserved for himself? The answer is yes, by virtue of the devolutive effect of the appeal (Soc. 20 Oct. 2015, no. 14-10.725).
Penalties for non-compliance with jurisdiction rules
Article R. 131-2 of the Code of Civil Enforcement Procedures is unappealable: "the judge hearing an application for the liquidation of an astreinte shall declare of his own motion that he does not have jurisdiction"..
Unlike other grounds of jurisdiction that may be covered, this one is binding on the judge. It is a means of public order.
Calculation of the amount of the liquidated penalty payment
Assessment of extraneous cause
The provisional or definitive astreinte may be cancelled, in whole or in part, if the non-performance is due to an unrelated cause (art. L. 131-4 al. 3 CPCE).
For the definitive astreinte, this is the only way out. Case law is strict on this concept.
Not a foreign cause :
- Sale of the building to be demolished (Civ. 2e, 15 Dec. 2005, no. 04-12.353)
- Strike by employees (Civ. 2e, 8 Dec. 2005, no. 04-10.817)
- Judicial liquidation (Com. 2 Oct. 2001, no. 00-10.337)
Recognized as a foreign cause:
- Impossibility of producing documents not held (Civ. 2e, 8 Apr. 2004, no. 02-14.631)
- The tenant's definitive departure rendering the work unnecessary (Civ. 2e, 6 Apr. 2006, no. 04-14.887)
Assessment of debtor behaviour
For provisional astreinte only, article L. 131-4 al. 1 of the CPCE provides that the liquidation takes into account "the behaviour of the person to whom the injunction has been addressed and the difficulties he has encountered in complying with it".
The judge has sovereign discretion. He may reduce the theoretical amount or even cancel the penalty payment.
But beware: the judge cannot take into account the creditor's prejudice (Civ. 2e, 4 July 2007, no. 06-15.755). The astreinte is independent of the damages.
Modulation or cancellation of the temporary on-call duty
The judge has full discretion to determine the proportion in which the astreinte should be reduced (Civ. 3e, 29 Apr. 2009, no. 08-12.952).
Factors such as age, state of health or excessive workload may justify moderation (Montpellier, 7 Nov. 2013, RG no. 13/00638).
However, a service error is not sufficient (Civ. 2e, 20 Dec. 2000, no. 98-23.102).
The final amount can never exceed that initially set (Civ. 2e, 11 May 2006, no. 05-17.402).
Effects of the decision liquidating the astreinte
Nature of the astreinte claim
The astreinte claim has several characteristics:
- It is paid in full to the creditor (Code des procédures civiles d'exécution, art. L. 131-1 et seq.).
- It earns interest at the legal rate from the time it is paid (Com. 19 March 1991, Bull. civ. IV, no. 109).
- It is not covered by insurance (Civ. 1re, 20 March 1989, no. 87-13.744).
- It is not payable by guarantors (Civ. 1re, 3 Apr. 2002, no. 00-10.893).
The claim is cumulative with any damages and occupancy indemnities (Civ. 2e, 30 Jan. 2003, no. 01-12.749).
Appeal against liquidation decision
The decision to liquidate the penalty is enforceable by operation of law (art. R. 131-4 CPCE). Case law systematically rejects any stay of execution (Civ. 2e, 29 Sept. 2011, no. 10-25.124).
The rate of jurisdiction for appeals is determined by the amount claimed in liquidation, not by the amount awarded (Soc. 6 May 1998, no. 96-40.544).
If the main decision is overturned, all liquidation decisions are annulled by ricochet, even those that have become res judicata (Com. 3 May 2006, no. 04-15.262).
Execution of the liquidation decision
Once the astreinte has been liquidated, it constitutes a debt like any other. It can be enforced by conventional means.
If the obligation has still not been fulfilled, the creditor may request a new astreinte, which is often higher. Some appeal courts do not hesitate to multiply the rate by six or more (Paris, 5 Apr. 2007, RG no. 2006/20124).
Fact often ignored: in the event of the debtor company being absorbed, the absorbing company remains liable for the astreinte liquidated for events prior to the merger (Civ. 2e, 1 Sept. 2016, no. 15-19.524).
A renowned legal expert has brilliantly described the liquidation as the "metamorphosis of the astreinte": the conditional threat becomes a definite claim.
Are you looking to recover a debt with an astreinte as quickly as possible? Our team of lawyers has solid expertise in judicial recovery and astreinte procedures. Please do not hesitate to contact us for a detailed analysis of your situation and the prospects for liquidation.
Sources
- Code of civil enforcement procedures, articles L. 131-1 to L. 131-4 and R. 131-1 to R. 131-4
- Civ. 2e, 8 Dec. 2011, no. 10-26.337, Bull. civ. II, no. 224
- Civ. 2e, 7 July 2011, no. 10-20.296, Bull. civ. II, no. 157
- Civ. 3e, 26 March 2003, no. 01-15.385, Bull. civ. III, no. 71
- Civ. 2e, 8 Dec. 2005, no. 03-19.473, Bull. civ. II, no. 307
- Civ. 2e, 8 Dec. 2005, no. 04-12.643, Bull. civ. II, no. 308
- Civ. 2e, 21 March 2019, no. 17-22.241, RDBF 2019, no. 135
- Civ. 2e, 1 Dec. 2016, no. 15-24.502, Bull. civ. II
- Civ. 2nd, 19 March 2020, no. 19-12.252
- Civ. 2e, 22 March 2012, no. 11-14.664
- Civ. 2e, 11 March 2010, no. 09-13.636, Bull. civ. II, no. 51
- Civ. 2e, 15 Jan. 2009, no. 07-20.955, Bull. civ. II, no. 13
- Soc. 20 Oct. 2015, no. 14-10.725, D. 2015, p. 2199
- Com. 3 May 2006, no. 04-15.262, Bull. civ. IV, no. 106
- Civ. 2e, 1 Sept. 2016, no. 15-19.524, RTD civ. 2016, p. 861
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