You won your case. The judge has ruled in your favour. You have a writ of execution. However, your debt remains unpaid because the debtor has immunity from enforcement. This paradoxical situation deserves a closer look.
What is immunity from execution?
Immunity from execution is a privilege that allows certain persons, by virtue of a quality peculiar to them, to escape the obligation to enforce judgments and deeds. This mechanism, which seems to contradict the right to enforcement, has its legal basis in article L.111-1 paragraph 3 of the Code of Civil Enforcement Procedures: "forced execution and precautionary measures are not applicable to persons who enjoy immunity from execution"..
In practice, this means that despite a valid writ of execution, you will not be able to seize the assets of a debtor who benefits from this immunity.
Immunities under domestic law: the protection of public bodies
Under French law, legal persons governed by public law traditionally enjoy immunity from execution. This principle, enshrined in case law, has been codified in article L.2311-1 of the General Code of Public Property: "the property of the public bodies referred to in Article L.1 may not be seized"..
This concerns:
- The State
- Local authorities and their groupings
- Public institutions
- Other public bodies such as the Banque de France
This immunity is justified on several grounds:
- The certainty of solvency of public bodies
- Public accounting rules
- The need for continuity of public service
If you are a creditor of a public body, you will have to use methods other than compulsory enforcement, such as the automatic authorisation and authorisation procedures provided for in the Act of 16 July 1980.
Foreign state immunity: a rollercoaster ride
The immunity of foreign states from execution underwent significant development in the case law before being enshrined in legislation. It is based on different foundations:
- State sovereignty
- International courtesy
- International political considerations
The Court of Cassation laid down a principle in the Eurodif judgment (Civ. 1re, 14 March 1984): immunity from execution of foreign States is a matter of principle, but may be waived for property assigned to an economic or commercial activity governed by private law.
The case law then fluctuated considerably, particularly on the issue of the waiver of immunity by States.
The Sapin 2 Act: a strengthening of immunities
Act no. 2016-1691 of 9 December 2016, known as the "Sapin 2 Act", clarified and tightened the regime governing immunities from execution of foreign States. It introduced Articles L.111-1-1 to L.111-1-3 into the Code of Civil Enforcement Procedures.
These provisions require:
- Prior authorisation by a judge for any enforcement measure against a foreign State
- Strict conditions for obtaining this authorisation
- Enhanced protection for property assigned to diplomatic missions
As has been pointed out in the literature, this reform represented a real step backwards in relation to previous developments in case law. According to Bismuth (JDI 2018), "The Sapin 2 Act marks a return to an extensive concept of immunity from execution"..
Conditions for enforcement against a foreign State
Article L.111-1-2 of the French Code of Civil Enforcement Procedures provides for three alternative cases in which enforcement against a foreign State is possible:
- Where the State has expressly consented to the application of the measure
- When the State has reserved or allocated the property to satisfy the request
- Where a judgement or arbitration award has been made against the State and the property is used for non-public purposes and has a link with the entity against which the proceedings have been brought
There are some important exceptions to the third condition. In particular, the following are excluded
- Diplomatic and consular property
- Military goods
- Cultural heritage assets
- Goods for scientific or cultural exhibitions
- Tax and social security receivables
In practice, there are few seizable assets left.
Waiver of immunity: two cumulative conditions
Article L.111-1-3 of the Code adds specific protection for diplomatic property. In the case of diplomatic property, enforcement is only possible in the event of an express AND special waiver by the States concerned.
This double condition requirement was confirmed by the Cour de cassation which, in a ruling dated 10 January 2018 (no. 16-22.494), held that "the waiver by a State of its immunity from execution must be not only express but also specific, referring to specific property or a specific category of property in respect of which it is intended to proceed with execution"..
In practical terms, a general waiver of immunity clause in a commercial contract is not enough.
What can be done about immunity?
When there is immunity from execution, direct recovery becomes impossible. However, alternative solutions do exist:
For French public bodies:
- Use of authorisation and automatic authorisation procedures
- Request for administrative penalty payment
- Referral to the Prefect to take the place of the defaulting local authority
For foreign states:
- Diplomatic negotiations
- Liability action against the French State
This last option merits further development.
The responsibility of the French State: a loophole?
When a creditor is unable to obtain payment because of immunity from execution, he may hold the French State liable without fault for breach of equality before public charges.
This possibility was established by the Conseil d'Etat ruling of 30 March 1966, Compagnie générale d'énergie radio-électrique. It requires proof of a serious and special prejudice.
Historically, this liability was accepted very restrictively. However, the Conseil d'Etat rulings of 11 February 2011 (Susilawati) and 14 October 2011 have relaxed the conditions under which such liability may be incurred.
In a ruling handed down on 2 July 2020, the Paris Administrative Court confirmed this trend, finding that the French State was liable on the grounds that its immunity from execution prevented it from recovering a debt.
The stakes are high for creditors, who can obtain compensation for the damage caused by the impossibility of enforcing an enforcement order against a foreign state.
A typical case? A contractor who has signed a contract with a foreign embassy, obtains a favourable judgment and then runs up against immunity from execution. A liability action against the French state could be his last resort.
Handling the rules on immunity from execution requires particular expertise, given the many subtleties in case law and legislative developments. The wrong strategic choice can lead to the failure of enforcement proceedings and unnecessary costs.
With the internationalisation of trade, these situations are becoming more frequent. Our firm can help you analyse the possibilities of enforcement against debtors benefiting from immunities and identify the best recovery strategies. Contact us for an initial analysis of your case.
Sources
- Code of civil enforcement procedures, articles L.111-1, L.111-1-1 to L.111-1-3
- Code général de la propriété des personnes publiques, article L.2311-1
- Act no. 2016-1691 of 9 December 2016 (Sapin 2 Act)
- Court of Cassation, 1st Civil Division, 14 March 1984, Eurodif (Bull. civ. I, no. 98)
- Court of Cassation, 1st Civil Division, 10 January 2018, no. 16-22.494
- Conseil d'État, 30 March 1966, Compagnie générale d'énergie radio-électrique
- Conseil d'État, 11 February 2011, Susilawati, req. no. 325253
- BISMUTH R., "L'immunité d'exécution après la loi Sapin 2", JDI 2018, Doctr. 4
- BOLLÉE S., "Les dispositions de la loi Sapin 2 relatives à l'immunité d'exécution", D. 2016, p. 2560.
- RISSER J., "Retour à la stabilité pour le droit français de l'immunité d'exécution", Revue pratique du recouvrement, March 2021, p. 3
EN 
FR