"`html
The seizure of intangible rights enables creditors to take legal action against intangible assets belonging to their debtors and then sell them. This procedure is gaining in importance with the digitalisation of the economy and the increase in the value of dematerialised assets. Comparing international approaches helps to better understand the strengths and weaknesses of the French system.
The French system: a structured but complex procedure
In France, the seizure of intangible rights is governed by the French Code of Civil Enforcement Procedures (CPCE). Codified in 2012, it applies to shareholder rightsThe Group's other intangible assets, marketable securities and other intangible rights exclude monetary receivables.
There are two main stages in the French procedure: seizure and sale. The seizure is carried out without a prior summons, by notification to a third party (company, issuer or authorised intermediary). The debtor must be notified of the deed within eight days, failing which it lapses.
The sale process differs according to the nature of the rights. For listed rights (securities admitted to trading), it is simplified and carried out at the market price. For unlisted rights, it follows a more cumbersome auction process involving specifications and advertising.
A particular French feature is that the legislator has chosen to give precedence to company law over compulsory execution. Article R. 233-9 of the CPCE specifies that approval, pre-emption and substitution procedures apply according to their own rules, which complicates enforcement and may discourage potential buyers.
European approaches: between tradition and innovation
Belgium and Luxembourg: the classic model persists
Luxembourg and Belgium maintain the system of garnishment for intangible rights. This procedure requires the creditor to return to court for validation despite the existence of a writ of execution. This excessive litigation slows down enforcement but offers procedural guarantees to the debtor.
Germany: sectoral adaptations
Germany mainly applies the procedure for attachment of claims (Pfändung) to intangible rights. Section 857 of the Zivilprozessordnung provides for specific adaptations for these rights. The German system is characterised by a special court order served on the third party. This service renders the rights unavailable but preserves the debtor's extrapatrimonial rights.
Article 2471 of the Italian Civil Code deals specifically with the forced expropriation of shares in limited liability companies. The text provides for an original solution: if the shareholding is not freely transferable, the sale by auction remains possible, but "the sale has no effect if the company presents, within ten days of the auction, another buyer who offers the same price".
The North American model: flexibility and pragmatism
Quebec: efficiency and dispossession
In Quebec, seizure in escrow applies to intangible rights. This procedure has two advantages over European systems:
- No validation body
- Immediate obligation for the third party to hand over the intangible rights to the bailiff
This approach simplifies and speeds up enforcement.
United States: federal disparities and innovation
The United States presents a fragmented landscape, with rules varying from state to state. Overall, the American system is characterised by greater flexibility for creditors. The "garnishment" procedure can be applied to intangible rights, with adaptations depending on the nature of the assets.
For cryptoassets, some US jurisdictions have developed innovative solutions, such as warrants authorising the authorities to access digital wallets.
Common challenges and differing approaches
Adapting to new digital assets
All legal systems are struggling to effectively capture cryptoassets and NFT. In France, article R. 231-1 of the CPCE theoretically allows the seizure procedure to be applied to intangible rights "insofar as their specific nature does not prevent it". This cautious wording reveals the practical difficulty of implementation.
The major obstacle remains access to the private keys enabling assets to be transferred. Some countries authorise coercive measures (fines, criminal penalties) against debtors who refuse to cooperate, while others favour more technical approaches.
Balancing protection and efficiency
The protection of professional rights varies considerably. In France, certain intangible rights linked to professional practice (shares in SCPs, ministerial offices) are difficult to enforce. On the other hand, Anglo-Saxon systems offer less protection to professional debtors.
The Court of Cassation ruling of 4 November 2003 illustrates this French protective approach: the auction of a ministerial office is deemed incompatible with the requirement for prior approval of the transferee by the Minister of Justice.
Comparative effectiveness
In terms of pure efficiency, North American systems seem to perform better. Quebec's escrow system, with immediate dispossession, offers better guarantees to creditors.
The French system, by giving primacy to company law, complicates enforcement. In practice, the French seizure of intangible rights often serves more as a means of exerting pressure than as an actual enforcement tool.
Outlook for development
The comparative study suggests a number of areas for improvement in the French system:
- Simplifying the auction procedure for unlisted rights
- Developing a specific scheme for digital assets
- Reviewing the relationship between enforcement law and company law
European harmonisation remains limited in the area of enforcement, which is a matter of national sovereignty. However, the common challenges posed by new digital assets could encourage pragmatic convergence.
The increasing dematerialisation of wealth makes it urgent to adapt enforcement procedures. To better understand this need, it is useful to retrace the history of enforcement procedures.historical development of the seizure of intangible rights in France, from the legal vacuum to the 2012 codification. The French legislator could draw inspiration from Quebec's flexibility while maintaining certain essential protections. For a in-depth legal expertise on the seizure of shares in FranceOur team is at your disposal.
Sources
- Code of civil enforcement procedures, articles L. 231-1 to L. 233-3 and R. 231-1 to R. 233-9
- Laher, R. (2023). Seizure of intangible rights. Répertoire de procédure civile, Dalloz
- German Zivilprozessordnung, article 857
- Code of Civil Procedure of Québec, articles 711 et seq.
- Court of Cassation ruling, 1st Civil Division, 4 November 2003, no. 99-13.965
- Opinion of the Court of Cassation, 8 February 1999, No. 98-00.015
- Italian Civil Code, article 2471
" `
EN 
FR