When a new law changes the rules on enforcement, how do you know which text applies to your current case? This question, far from being theoretical, often determines the outcome of enforcement proceedings. Between the protection of acquired rights and the immediate application of new legislation, transitional law lays down precise rules that deserve your attention.
The principle of immediate application of civil enforcement laws
Laws relating to civil enforcement proceedings apply immediately, even to proceedings that have already begun. This fundamental principle was reiterated by the Court of Cassation in a ruling dated 17 February 2011: "in the absence of a special provision, laws relating to enforcement procedures apply immediately".
This rule stems from the very nature of procedural legislation, which is considered to affect the general interest and not the substantive rights of the parties. In practice, this means that a new law immediately governs procedural acts subsequent to its entry into force.
However, there are important limits to this principle. The first major limitation is the validation of previous acts: acts validly performed under the old law remain valid. In addition, certain transitional provisions may preclude immediate application.
Means of constraint in the face of new laws
Legal coercion (formerly contrainte par corps)
Case law has always considered contrainte par corps to be a measure of forced execution and not a penalty. The Court of Cassation has clearly stated that "the laws relating to this matter govern proceedings brought under their authority, even though the obligation whose enforcement is being sought arose under the previous legislation".
This solution was applied during the various reforms, in particular:
- At the time of the law of 22 July 1867 abolishing physical restraint in civil and commercial matters
- For the 1958 reform
- More recently, the Act of 9 March 2004 replaced physical restraint with judicial restraint.
However, the latter law made provision for a specific transitional clause: restraining orders in force on 1 January 2005 will continue to be enforced until they expire, subject to the decisions of the sentence enforcement judge.
On-call duty and its temporal regime
As regards the astreinte, the jurisdiction of the court and the procedure follow the normal rules of conflict of laws in time. Thus, when a court has ruled on an application for the liquidation of an astreinte before the entry into force of the Law of 9 July 1991, the Court of Appeal remains validly seised despite the entry into force of the new law during the appeal proceedings.
Conversely, the new provisions concerning the terms and conditions of the astreinte apply immediately to ongoing proceedings. For example, if a definitive astreinte was ordered before 1 January 1993 without prior determination of a provisional astreinte, the judge will regain his discretion to liquidate it as a provisional astreinte if the summons for liquidation is issued after that date.
Application of new laws on seizures
Competence rules
New laws modifying jurisdiction follow the general principle of transitional law: the new jurisdictional law applies only if there has been no decision on the merits. Otherwise, the old law survives.
The Court of Cassation confirmed this position in its opinion of 29 November 1993 on the application of the Law of 9 July 1991: "the law on jurisdiction applies immediately, although the jurisdiction of the court initially seised is retained where a decision on the merits was handed down before the new provisions came into force".
Formal rules
The principle applicable to rules of form is simple: the new law immediately governs subsequent acts, but acts previously performed remain valid. Thus, the forms to be followed for a higher bid must be those established by the law under which it takes place, even if the auction took place under a different law.
This principle is illustrated in recent proceedings. For example, the decree of 30 May 2012 relating to the Code of Civil Enforcement Procedures specified that certain provisions would not apply to ongoing proceedings. Similarly, the decree of 27 November 2020 amended the seizure of property procedure, specifying its application to proceedings in progress on 1 January 2021.
Substantive rules on seizures
Substantive conditions
The substantive conditions are determined by the law in force on the day the seizure is commenced or authorised. Acts performed in accordance with the old law remain valid. This principle was applied in particular when stricter conditions were introduced for the precautionary seizure of ships.
Procedural deadlines
The situation for time limits varies depending on whether their starting point is before or after the new law. A notable example is the decree of 27 November 2020, which extended the time limit for the expiry of a summons to pay in the form of a seizure from 2 to 5 years, applicable to proceedings in progress on 1 January 2021.
Case law has established that the period only begins to run from the day the new law comes into force, without the total period exceeding the old period from the starting point set by the old law.
Seizable portion
With regard to the fraction of income that can be seized, the Cour de cassation has settled an important debate concerning the application of the law of 12 January 1895, which limited the fraction of wages that could be seized to 1/10. It ruled that for salaries paid prior to the new law, the old law remained applicable, as the new law only governed salaries due from its entry into force.
This same principle was applied to the decree of 24 March 1977 extending the list of unseizable assets. The Court of Cassation held that the applicable text had to be determined as at the date of the seizure report.
Distribution procedures and specific transitional measures
Distribution procedures
In an opinion dated 29 November 1993, the Court of Cassation stated that, since 1 January 1993, proceedings for distribution by contribution were no longer the responsibility of the judges responsible for orders and distributions by contribution. However, these judges retained jurisdiction for claims referred to them prior to this date, if they had already drawn up a statement of provisional distribution.
Types of transitional measures
New laws often provide for transitional measures that specify their temporal application. There are two main types:
- Measures indicating that the new law applies to current proceedings, while leaving intact the validity of acts performed before it came into force.
- Measures specifying that proceedings initiated prior to promulgation continue to be governed by the previous provisions.
The Act of 9 July 1991 opted for this second approach, specifying that it "shall not apply to enforcement measures and precautionary measures initiated before its entry into force".
Notion of "initiated" proceedings
Case law has had to specify when enforcement proceedings are considered to be "initiated". For the transition from the old seizure and enforcement system to the new seizure and sale system, the courts have ruled that the summons to pay is simply a preparatory act, with only the seizure act marking the commencement of the procedure.
The Court of Cassation confirmed this position in an opinion of 14 June 1993: a summons issued before 1 January 1993 and not followed by a seizure in execution before that date cannot serve as a basis for either a seizure in execution (which has disappeared) or a seizure for sale. A new summons must be issued in accordance with the new provisions.
Similarly, in the case of property seizures, case law has held that execution only commences once the summons has been published. The enforcement judge therefore has jurisdiction to rule on a request for a period of grace when the summons for the purposes of seizing the property has not yet been published.
How to determine the law applicable to your proceedings
When faced with a change in legislation during an enforcement procedure, follow these steps:
- Check whether the new law contains specific transitional provisions
- Identify the stage your procedure is at when it comes into force
- Determine which acts have already been validly performed
- Analyse whether the concept of "initiated" proceedings applies to your situation
Each situation deserves a personalised analysis, as the practical consequences of an error of assessment can be serious: invalidity of the proceedings, lack of jurisdiction of the court seised, or application of more unfavourable rules.
Our team of lawyers with expertise in enforcement law can guide you through this technical analysis and offer you a strategy tailored to your case. Contact us to clarify the application of the law over time to your enforcement procedure.
Sources
- Code of civil enforcement procedures
- Law no. 91-650 of 9 July 1991 reforming civil enforcement procedures
- Decree no. 92-755 of 31 July 1992
- Law no. 2004-204 of 9 March 2004 adapting the justice system to developments in crime
- Decree no. 2020-1452 of 27 November 2020 containing various provisions relating to civil enforcement procedures
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