Forced debt collection procedures are not limited to a simple confrontation between a creditor and his debtor. Very often, a third party becomes involved in the process against their will. Whether it is a bank, an employer or a notary, this third party becomes an essential cog in the procedure, obliged to lend a hand to the court, with strict obligations and a liability that can be heavily involved. The complexity of these rules and the constant reforms in this area underline the importance of having a clear understanding of the role of each party in order to secure the implementation of enforcement operations. The assistance of a lawyer specialised in enforcement is often decisive in navigating these mechanisms without making mistakes.
Typology and definition of third parties in civil enforcement proceedings
To fully understand the role of third parties, it is essential to place them in their proper context. the general framework of civil enforcement proceduresThe term "third party" covers very different situations. The term "third party" covers very different realities, and the degree of involvement varies considerably.
Who are the third parties? The different categories of stakeholder
When it comes to enforcement, there are three main categories of third parties. The first includes those who are totally outside the mechanism but whose interests must be protected, such as witnesses or auxiliaries (locksmith, removal firm) required on an ad hoc basis. The second category concerns third parties who, although not involved in the debt, are implicated and must assert their rights, such as the owner of a property mistakenly seized from the debtor or a pledgee. Finally, the last case, the most involved, brings together third parties holding goods or funds on behalf of the seized party. They are the ones directly affected by the measure and are required to cooperate actively to ensure that it runs smoothly.
Specific notion of garnishee: debtor of the debtor
The garnishee is a central figure in enforcement procedures. They are defined as the "debtor's debtor". In practical terms, this is a person or entity that owes a sum of money not to the pursuing creditor, but directly to the person being pursued. The most common examples are a bank holding a customer's funds in an account, an employer owing wages to an employee, or a solicitor holding the sale price of a property on behalf of the seller. The decisive criterion for classifying a third party as a "garnishee" is the autonomy it enjoys in managing the funds. If they have their own power over the sums, such as a lawyer managing his client's funds via a CARPA account, they can be classified as garnishees. On the other hand, a mere agent acting under the direct orders of the seizing party would not be.
The general obligation to inform and cooperate with third parties
The smooth running of enforcement measures is based on the fundamental principle of cooperation. Third parties are not simply spectators; the law requires them to play an active role, governed by precise obligations and dissuasive penalties.
The scope of the duty to provide information for the judicial commissioner
One of the main obstacles to debt collection is locating the debtor and his assets. To remedy this, the judicial commissioner (formerly a bailiff) holding an enforcement order has a right of direct access to certain information. Under articles L. 152-1 and L. 152-2 of the French Code of Civil Enforcement Procedures (C. proc. exéc.), State and local authorities, as well as public establishments or companies controlled by an administrative authority, are required to provide the judicial officer with information that enables him to determine the debtor's address, the identity of his employer, or the composition of his real estate holdings. Similarly, banks must indicate whether the debtor holds one or more accounts with them. This obligation takes precedence over professional secrecy, but is strictly limited to the information required for enforcement, the use of which is strictly regulated to protect the debtor's privacy.
The duty to cooperate and sanctions in the event of an obstacle
Article L. 123-1 of the Code of Civil Enforcement Procedures (C. proc. exéc.) lays down a clear rule: third parties may not stand in the way of the measures taken. They must cooperate when legally required to do so. Any failure to comply with this duty to cooperate, if there is no legitimate reason, exposes the third party to sanctions. In the event of failure or obstruction on the part of a third party, the creditor may refer the matter to the competent authority, thus illustrating the importance of the role of the Enforcement Judge (JEX) in supervising these operations. The JEX can force the recalcitrant third party to comply, if necessary under a penalty payment, ensure that the measure is properly implemented and order the third party to pay damages. The most severe sanction remains the possibility of the third party being ordered to pay the full amount of the seizure itself, i.e. the claim, without subsequently being able to take recourse against the debtor.
The garnishee's specific obligation to declare: scope, formalities and penalties
In addition to the general duty to cooperate, garnishees are subject to a particularly stringent reporting obligation, failure to comply with which may have direct and immediate financial consequences.
Scope and formalities of the declaration: attachment of payment and attachment of remuneration
The requirements vary depending on the nature of the entry. These requirements are particularly strict for the attachment procedureIn this case, the garnishee, often a bank, must provide the bailiff with precise information "on the spot". This immediate declaration to the bailiff must cover the extent of its obligations to the debtor and be accompanied by all relevant documents and supporting evidence. The practice is slightly different for the attachment of wages. The employer, the garnishee, has fifteen days from notification of the attachment deed to declare to the court clerk's office the legal situation binding him to his employee (nature of the contract, amount of salary) and the existence of any other ongoing attachments.
Penalties for failure to comply with the obligation to declare and the concept of legitimate reason
Failure to comply with the obligation to declare is severely punished. A garnishee who, through negligence or misconduct, refuses to make a declaration, or who does so late, inaccurately or falsely, is liable to be ordered to pay the costs of the seizure. He may also be ordered to pay damages to the creditor who has suffered loss as a result of his default, as well as a civil fine. The case law of the Court of Cassation (e.g. Civ. 2e, 15 April 2021, appeal no. 20-15.432, available on Lextenso) interprets the obligation to make a declaration "on the spot" very strictly, not hesitating to penalise a delay of a few hours (see, for example, a ruling by the Versailles Court of Appeal, 10 January 2022, available on Lextenso, upholding a first instance conviction). The only way out for the third party is to invoke a "legitimate reason", the burden of proof for which lies with the third party in the event of a dispute. This concept, which is assessed on a case-by-case basis by the courts, remains an exception. It may be recognised when the person receiving the judicial commissioner's document, such as a receptionist or secretary, clearly does not have the skills or information to respond immediately.
Procedural adjustments and special cases involving garnishees
Involving a third party in the enforcement process entails adjustments and raises complex issues, particularly when the debtor's personal situation (marital status, over-indebtedness) or changes in the law change the rules of the game.
The dual procedure with the third party and the debtor: principle and deadlines
A fundamental principle guarantees the rights of the party seized: double service. When a measure is taken against a third party, the mechanism works in two stages. First, the garnishee is served with the document, which has the effect of making the goods or sums unavailable. Secondly, the debtor must be notified of the measure, usually by a bailiff within eight days. This split, which applies in particular to attachment for payment or attachment for sale to a third party, is crucial because it gives the debtor time to contest the attachment.
Attachment of joint bank accounts and matrimonial property regimes
The analysis becomes more complex when attachment to a joint accountThis is a situation where the garnishee (the bank) has to juggle its obligation to make a declaration with the need to protect the funds of the non-debtor spouse. Under the regime of legal community, the seizability of funds depends on the nature of the debt. If the debt was contracted by just one spouse without the other's consent, for a loan or a guarantee, article 1415 of the Civil Code protects the joint assets. In this case, the seizing creditor may only seize the debtor spouse's own property and income. In this case, seizure of the joint account is in principle impossible, unless the creditor can prove that the funds in the account are the debtor's own income. The burden of proof therefore falls heavily on the creditor, and in the absence of such proof, the bank must refuse to freeze all the funds and respect the portion corresponding to the spouse's unattachable bank balance.
Obligations and role of the garnishee in the event of debtor over-indebtedness proceedings
When a debtor is the subject of over-indebtedness proceedings, which are similar to collective proceedings for private individuals, the obligations of the garnishee are radically altered. The over-indebtedness commission's decision to accept the case suspends and prohibits all current enforcement measures against the debtor's assets for debts other than maintenance debts. This is because the effects of over-indebtedness proceedingsIn particular, the suspension of proceedings radically alters the framework for intervention and the obligations of the garnishee. Upon notification of this decision, a bank or employer must cease all payments to the garnishee. They are also prohibited from paying any debt that arose prior to the suspension. The garnishee becomes a simple holder of the funds, who may only dispose of them on the instructions of the commission or the judge.
The reform of the seizure of remuneration and the involvement of judicial commissioners (2025)
A major reform, due to come into force on 1 July 2025 by decree, will radically transform the attachment of wages by making it less a matter for the courts. Hitherto managed by the court clerk's office, this method of enforcement will be entirely entrusted to the judicial commissioners. A "dispatcher" judicial commissioner will be appointed by the national chamber to centralise and manage collections. This new approach is based on dematerialisation and the creation of a national digital register of wage seizures, which will ensure traceability and coordination of measures, improving access to information. For the third-party employer seized, this means simplified exchanges, mainly by electronic means, which completes the dematerialisation of procedures. The measure will begin with a summons to pay, giving the debtor one month to reach an agreement. If no agreement is reached, the seizure will be notified to the employer, who will then have to pay the seizable portions of the wages directly to the distributing court commissioner. Failure to comply with this new provision will result in penalties, including a civil fine of up to €10,000.
The diversity of situations and the technical nature of the rules applicable to garnishees make it essential to carry out a rigorous analysis of each case. To secure your enforcement procedures or defend your rights as a third party involved, do not hesitate to contact our firm of lawyers who are experts in enforcement procedures.
Sources
- Code of civil enforcement procedures
- Civil Code (art. 1415)
- French Labour Code
- Consumer Code
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