You have a debt that appears to be well-founded and its recovery is threatened, as we saw in our first article. The practical question then arises: how do you actually initiate a precautionary measure? Do you always have to get the go-ahead from a judge before taking action to protect your interests?
The answer is nuanced. The general rule is prior judicial authorisation. This is an important safeguard for the debtor. However, for reasons of efficiency and when the claim presents particular guarantees of seriousness, the law has provided for shortcuts enabling the creditor to act more quickly, without initially going to court. Understanding this distinction is important if you are to act effectively. This article details the authorisation procedure and the cases in which you can dispense with it.
The principle: judicial authorisation is required
In most cases, before you can carry out a precautionary seizure or register a legal security, you must obtain a judge's authorisation. Why do you need a judge's authorisation? Because a precautionary measure, even a provisional one, affects the debtor's assets and rights. The purpose of this initial judicial review is to check that the legal conditions have been met - in particular, that your claim appears to be well-founded and that there is a real threat to its recovery (article L. 511-1 of the Code of Civil Enforcement Procedures - CPCE) - and to prevent abusive actions.
Which judge should I refer to?
In principle, the competent court is the Enforcement Judge (JEX). This is a magistrate of the Judicial Court who specialises in matters relating to the enforcement of legal decisions and protective measures (article L. 213-6 of the Code de l'organisation judiciaire - COJ). Territorially, the matter must be referred to the JEX of the place of residence of the debtor (article R. 511-2 of the CPCE). This jurisdictional rule is a matter of public policy, which means that it cannot be derogated from by contract (article R. 511-3 of the CPCE).
There is, however, one important exception: if your claim is for commercial and you take action before taking legal action on the merits, you can also refer the matter to the Chairman of the Commercial Court of the place where the debtor resides (article L. 511-3 of the CPCE). Note that this jurisdiction is concurrent (you can always choose the JEX) and disappears as soon as proceedings are commenced (even summary proceedings); only the JEX then regains jurisdiction.
How do I take a case to court? The application
The application for authorisation takes the form of a request (article R. 511-1 of the CPCE). This is a written document addressed to the competent judge, setting out the facts, the basis of your claim (with supporting documents), the reasons why its recovery is threatened (with supporting evidence), the assets you wish to seize or on which you wish to register a security, and the amount of the claim (or its provisional valuation).
Key point: this procedure takes place without the debtor being informed initially (the so-called "non-adversarial" procedure, governed by articles 493 et seq. of the Code of Civil Procedure). The aim is to preserve the surprise effect of the protective measure. If the debtor were warned, he could speed up the concealment of his assets.
Before the JEX or the President of the Tribunal de Commerce, representation by a lawyer is often compulsory, particularly if the amount at stake exceeds €10,000 (articles L. 121-4 and R. 121-6 of the CPCE).
The judge's decision: the order
The judge examines your application and the documents provided. He then issues a decision called a order on request.
- If it considers that the conditions have been met, it will authorises the protective measure. The order must specify the goods concerned and the maximum amount for which the measure is authorised (article R. 511-4 of the CPCE). Failure to comply with these provisions may invalidate the order. The judge is not bound by your request and may authorise a measure for a lower amount or for more limited assets.
- If it considers the conditions to be insufficient, it will refuses authorisation.
In all cases, the prescription must be motivatedThis means explaining the reasons for the decision (article 495 of the Code of Civil Procedure).
Time limit for taking action after authorisation
Once you have obtained the authorisation order, please note that you have a three-month period to implement the precautionary measure (have the bailiff carry out the seizure, file the registration forms for a security interest, etc.). Once this deadline has passed, the order becomes null and voidit loses all validity (article R. 511-6 of the CPCE).
Exceptions: when can you act without a judge's authorisation?
The authorisation procedure, although protective, necessarily takes some time. To enable a more immediate response in situations where the claim already presents a high degree of evidence, article L. 511-2 of the CPCE provides for four specific cases where the creditor is exempted from seeking prior authorisation from the judge.
In these cases, you can directly instruct a bailiff to carry out the seizure or register the provisional security. But be careful: this does not exempt you from having to justify your decision, a posteriori if the debtor contests, that the substantive conditions (claim founded and threat to collections) were in place at the time you acted. Case law is consistent on this point: the exemption only concerns prior authorisation, not the substantive conditions themselves. Acting without authorisation means acting more quickly, but at your own risk.
There are four exemptions:
1. You have a writ of execution
If you already have a enforcement orderYou do not need authorisation for a precautionary measure. This is logical: an enforceable title already allows you, in theory, to proceed with compulsory execution (seizure for sale, attachment for payment, etc.). It is therefore only natural that it should also allow you to take a simple protective measure. What is an enforcement order? Article L. 111-3 of the CPCE lists them. The most common are :
- A legal decision (judgement, ruling) that has become res judicata (not subject to suspensive appeal) or has been provisionally enforced.
- A notarised deed with an enforceable clause (for example, a notarised loan deed).
- A title issued by the bailiff in the event of non-payment of a cheque.
- Certain enforceable administrative acts.
2. You have a court order that is not (yet) enforceable
This situation is similar to the previous one. You have obtained a judgement or ruling that recognises your claim, but it is not yet enforceable (for example, because the time limit for appeal is still running, or because an appeal has been lodged but not provisionally enforced). An arbitration award, even one that has not yet been granted exequatur (the formula that makes it enforceable in France), is also considered to be a court decision for the purposes of this exemption, according to case law. The idea is that a judge or arbitrator has already found your claim to be well-founded, justifying rapid protection.
3. You have an accepted bill of exchange, promissory note or unpaid cheque
These instruments are formal payment undertakings.
- A accepted bill of exchange means that the debtor (the drawee) has formally acknowledged that it owes the sum.
- A promissory note is a written promise to pay a sum on a given date.
- A cheque is an immediate payment order.
The fact that payment has not been made by the due date (in the case of bills of exchange or promissory notes) or on presentation (in the case of cheques) is a strong indication of financial difficulties or unwillingness on the part of the debtor, justifying protective action without prior authorisation.
4. Your tenant does not pay the rent (written lease)
This is the most specific exception, and one that is sometimes criticised. If you are the lessor of a building (housing, commercial premises, etc.) and your tenant is not paying the rent, you can take a protective measure without authorisation, provided that the unpaid rent is the result of a written lease agreement.
Case law interprets this exception strictly: in principle, it only covers rent. strictly speaking and sometimes rental charges if the lease clearly states so, but generally not occupancy allowances, reminder charges or penalty clauses. Above all, this exemption does not apply to not to take action against the person who has security deposit for the tenant; for the guarantor, the judge's authorisation is still required.
Acting without authorisation: what are the risks?
Being exempt from authorisation means you can act very quickly. This is a considerable advantage when time is of the essence. However, it is not a blank cheque. A creditor who acts without prior authorisation does so on its own responsibility.
The debtor retains intact his right to dispute measurement a posteriori (article L. 512-1 of the CPCE). After the measure has been implemented, the customer may apply to the JEX (or the President of the Commercial Court, if applicable) to have the measure rescinded. release (cancellation).
What can the dispute be about?
- On the fact that the substantive conditions were not met at the time of the measure (absence of a claim that appeared to be well-founded, or above all, absence of circumstances threatening recovery).
- On the fact that the exemption invoked by the creditor was not applicable (for example, the title was not really enforceable, the lease was not in writing, the sum claimed was not rent, etc.).
If the judge finds in favour of the debtor and orders the release, the consequences for the creditor can be significant:
- The protective measure is cancelled.
- More seriously, the creditor may be ordered to pay damages to the debtor to repair the damage caused by the unjustified measure (article L. 512-2 of the CPCE). It is important to note that case law considers that the debtor does not even need to prove fault on the part of the creditor in order to obtain this compensation; it is sufficient to show that the measure was unfounded and that it caused the debtor harm (damage to image, unnecessary blocking of funds, etc.).
Acting without authorisation is therefore a double-edged option: it offers speed and surprise, but exposes the creditor to increased liability if its action proves unfounded.
The decision to initiate a precautionary measure, and to opt for judicial authorisation or exemption where possible, must be carefully considered in the light of the specific features of each case. For a personalised analysis of your case and to ensure that you act in compliance with the applicable rules, whether you are a creditor or debtor affected by such a measure, our team is at your disposal.
Sources
- Code of Civil Enforcement Procedures (CPCE)
- Code of Judicial Organisation (COJ)
- Code of civil procedure (C.pr.civ.)
- Civil Code
- Commercial code
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