Preventive attachment of a bank account is a formidable preventive measure, enabling a creditor to freeze a sum of money in the debtor's account even before obtaining a final court ruling. This rapid procedure, designed to guarantee payment of a future debt, creates a major surprise effect by making funds unavailable. The aim is clear: to prevent the debtor from organising his insolvency.
This article provides an overview of the precautionary seizure of accounts, from its conditions to its implementation, by summarising the key stages of this complex enforcement procedure, governed by the Code of Civil Enforcement Procedures.
For made-to-measure support, our law firm with expertise in enforcement procedures and sequestration can analyse your situation.
What is a precautionary attachment on a bank account?
Attachment is a provisional legal measure designed to secure a debt. When it concerns a bank account, it consists of making a sum of money held by a bank on behalf of a debtor unavailable. In practical terms, the creditor, through the intermediary of a judicial commissioner (formerly a bailiff), will block a certain amount of money in the debtor's bank account. The account balance remains in credit, but the debtor can no longer use the portion seized.
It is not yet a payment. A conservatory attachment "freezes" funds pending the outcome of legal proceedings. This distinguishes it from attachment for payment, which is a compulsory enforcement measure that is applied once a court order has been obtained ordering the debtor to pay. The protective attachment is therefore a guarantee, a strategic position to preserve the chances of recovery.
Conditions for initiating protective attachment proceedings
A creditor cannot carry out a protective attachment on a whim. The law strictly regulates this measure to protect the debtor from abusive actions. If the court receives an application for authorisation, it will check that two cumulative conditions are met, as set out in art. L. 511-1 of the Code of Civil Enforcement Procedures.
A claim that appears to be well-founded in principle
The first condition is that the claim must appear to be founded in principle, what lawyers call the fumus boni juris. It is not necessary at this stage for the claim to be certain, liquid and due, as is the case for a compulsory enforcement measure.
The creditor simply has to prove to the judge that there is an appearance of right, a likelihood of his claim. To do this, he can produce any useful document: an unpaid invoice, a contract, an acknowledgement of debt, or letters of formal notice that have gone unanswered. The enforcement judge does not rule on the merits of the dispute, but assesses whether the application for seizure has a serious basis.
Circumstances threatening recovery of the debt
The second condition is the existence of circumstances likely to threaten the recovery of the debt (the periculum in moraThe creditor must prove that there is a real risk that the debtor will be unable or unwilling to pay the debt at the end of the proceedings.) The creditor must prove that there is a real risk that the debtor will be unable or unwilling to pay his debt at the end of the procedure.
This threat can take several forms: the debtor's known or feared insolvency, the concealment of his assets, or behaviour demonstrating a desire not to fulfil his obligations.
For example, failure to publish a company's financial statements or a very high level of debt in relation to its assets may constitute such a threat. The French Supreme Court (Cour de Cassation) reviews the reasoning of trial judges on this point (Cass., Commercial Chamber, 8 March 1977).
A judge's authorisation: often an essential step
In principle, to carry out a protective attachment, the creditor must obtain prior authorisation from the courts. This step ensures that the legitimacy of the measure is checked before it is implemented.
The principle: obtain an order from the enforcement judge
The application for authorisation to seize is made by a request addressed to the enforcement judge (JEX) at the judicial court in the place where the debtor lives. The procedure is non-adversarial, i.e. the debtor is not informed, in order to preserve the element of surprise.
The creditor who applies for this authorisation must enclose with his application all the documents justifying the validity of his claim and the threat to its recovery. If the judge considers the application to be justified, he will issue an order authorising the protective attachment. This order specifies the amount of the debt for which the attachment is authorised.
Exemptions from judicial authorisation
Art. L. 511-2 of the French Code of Civil Enforcement Procedures provides for exceptions where the creditor may carry out a protective attachment without the prior authorisation of the court. This exemption is granted when the claim has already been evidenced by a sufficiently conclusive document. The main cases are :
- Possession of a writ of execution, even if it is not final.
- A court decision that is not yet enforceable.
- Failure to pay an accepted bill of exchange, promissory note or unpaid cheque.
- Unpaid rent resulting from a written property rental contract.
In these situations, the creditor can apply directly to a court commissioner to carry out the seizure. However, the debtor still has the option of contesting the seizure after the event.
The seizure process and its consequences for the debtor
Once authorisation has been obtained, or if the creditor is exempt, the seizure procedure can be launched. It follows a precise timetable and gives the debtor rights.
Implementation of the measure by the judicial commissioner
The creditor has three months from the date of the protective attachment order to have the attachment carried out by a court commissioner. The seizure is carried out by a writ of attachment served directly on the debtor's bank (the garnishee). This deed immediately makes part of the account balance unavailable, up to the authorised amount. The bank is required to declare the balance of the debtor's accounts on the day of the seizure.
The seizure must then be notified to the debtor by a court officer within eight days. This document informs the debtor of the seizure, his right to contest it and the sums blocked.
In addition, the creditor must, within one month of the enforcement of the measure, initiate the necessary legal proceedings to obtain a writ of execution ordering the debtor to pay. Compliance with these time limits, which are calculated according to rules of civil procedure If you do not, the seizure will lapse.
Remedies available to the debtor: contesting the seizure
A debtor who has been subject to a protective attachment has the right to contest it. They can apply to the enforcement judge to have the attachment lifted. The grounds for challenge may relate to the form of the procedure (failure to meet deadlines, for example) or to the substance. The debtor may thus seek to demonstrate that the conditions for the attachment have not been met: that the debt is not founded in principle or that its recovery is not threatened.
Conversion of a protective attachment into an attachment for payment
The protective attachment is only a transitional stage. For the creditor to be able to effectively recover the blocked sum of money, he must transform this protective measure into a compulsory execution measure.
Obtaining an enforceable title: the key to conversion
Conversion is only possible once the creditor has obtained a writ of execution. This is usually a court decision (a judgment) ordering the debtor to pay the debt. It is this document that formalises the debt and enables the creditor to move from preserving its rights to enforcing them.
The conversion deed and payment by the garnishee
Armed with the writ of execution, the creditor must serve a conversion deed on the bank. This deed transforms the precautionary seizure into a attachment. A copy of the conversion deed is also served on the debtor.
The creditor then has 15 days in which to contest the conversion. If there is no further objection within this period, the creditor may request payment of the sums seized from the bank. The garnishee then makes the payment directly to the creditor's representative, which ends the procedure.
Although the protective attachment procedure is effective, it is subject to strict stages and deadlines, failure to comply with which may result in the procedure becoming null and void. Building an effective collection strategy requires the involvement of a lawyer to secure each phase of the procedure, from the initial application to the conversion into an attachment for payment.
Frequently asked questions
What is the difference between a protective attachment and an attachment for payment?
Attachment is a preventive measure that freezes funds in an account without allowing immediate payment to the creditor. It can be initiated even before legal proceedings. In contrast, an attachment for payment is a compulsory execution procedure that takes place after a writ of execution has been obtained (such as a final judgment or a payment order that has become enforceable), and which obliges the bank to pay the creditor with the seized funds.
Can my entire bank account be blocked?
No. The law protects part of your funds. Art. R. 162-2 of the Code of Civil Enforcement Procedures provides for an unseizable bank balance (SBI). This amount, equivalent to the lump sum of the RSA for a single person, must be left at your disposal by the bank. The seizure can only relate to the available balance in excess of this amount.
How long does a precautionary seizure last?
Attachment is a provisional measure. Its period of validity is linked to the procedure undertaken by the creditor to obtain a writ of execution. If the creditor does not act within the time limit set (in particular, one month to bring an action on the merits), the attachment lapses and an application for release may be made.
Can I use my account during the seizure?
Yes, but to a limited extent. The amount for which the seizure has been made becomes unavailable. You may, however, use the balance of the open account that exceeds this amount, as well as any funds credited to the account after the date of seizure.
What happens if I contest the seizure and win?
If, following your challenge, the judge orders the seizure to be released (or lifted), the funds held in your bank account are immediately released. In certain cases, you can also ask the judge to order the creditor to pay you damages (compensation) for the loss suffered as a result of the unjustified seizure.
Who pays the costs of the seizure procedure?
In principle, the costs of the seizure procedure (costs of the court commissioner, etc.) are borne by the debtor. However, if the seizure is found to be abusive and release is ordered, the creditor may be ordered to bear these costs.
Is there a European seizure procedure?
Yes, Regulation (EU) No 655/2014 created a European order procedure for the precautionary attachment of bank accounts. This European procedure, which does not replace national remedies but is additional to them, makes it possible to freeze funds in an account opened in another EU Member State. It greatly facilitates cross-border debt recovery in Europe by providing access to a unified legal tool.
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