Cross-border enforcement and exequatur of foreign judgments

Winning a case does not guarantee payment. This situation is exacerbated when the debtor or his assets are located abroad.

Exequatur under French ordinary law

Exequatur transforms a foreign judgment into an enforceable title in France. This process is based on article 509 of the Code of Civil Procedure: "judgments handed down by foreign courts and documents issued by foreign officials are enforceable in the territory of the Republic in the manner and in the cases provided for by law"..

The judicial court, sitting as a single judge, has exclusive jurisdiction for exequatur (article R. 212-8, 2° of the Code de l'organisation judiciaire).

Case law has laid down strict conditions for obtaining exequatur. The Cornelissen ruling of 20 February 2007 is the benchmark. The Court of Cassation verifies three criteria without reviewing the substance of the decision:

• International jurisdiction of foreign courts
• Compliance with French public policy (substantive and procedural)
• The absence of fraud

This procedure presents considerable technical difficulties, often requiring legal expertise to avoid rejection.

European recognition and enforcement mechanisms

Europe has simplified the circulation of legal decisions between member countries. The European judicial area makes it easier for creditors to enforce judgments.

Since 10 January 2015, Regulation (EU) No 1215/2012 of 12 December 2012, known as "Brussels I bis", has revolutionised cross-border enforcement.

The Brussels I bis Regulation and the abolition of exequatur

The major change introduced by this regulation? The abolition of exequatur.

Previously, a creditor had to obtain a declaration of enforceability of the foreign judgment. Now, Article 39 of the Regulation stipulates that"a judgment given in a Member State shall be enforceable in the other Member States without the need for a declaration of enforceability"..

To enforce a foreign European judgment in France, all you have to do is show the bailiff :

• An authentic copy of the judgment
• A standardised certificate issued by the court of origin
• Translation if necessary

The debtor may oppose enforcement only before the Paris judicial court on the grounds listed exhaustively in article 45 of the regulation. This mechanism preserves the right to appeal while speeding up enforcement.

Other European instruments facilitating cross-border enforcement

Europe has developed several tools to simplify enforcement:

1. The European Enforcement Order (Regulation 805/2004) for uncontested claims
2. The European order for payment (Regulation No 1896/2006), a uniform procedure for monetary claims
3. The European Small Claims Procedure (Regulation 861/2007) for cross-border cases under €5,000
4. The European order for the precautionary seizure of bank accounts (Regulation No 655/2014), allowing accounts to be frozen throughout the Union

In family matters, the Brussels II ter regulation (n°2019/1111) applicable from 1 August 2022 abolishes exequatur for decisions concerning parental responsibility.

International conventions and their effects

Outside the European Union, enforcement depends on bilateral or multilateral agreements. The Lugano Convention of 30 October 2007 extends a system similar to the Brussels I Regulation to relations with Switzerland, Norway and Iceland.

The Hague Convention of 2 July 2019 on the recognition and enforcement of foreign judgments in civil and commercial matters, which entered into force on 1 September 2023, represents a major step forward.

Some countries maintain a protectionist approach. The United States, for example, accepts foreign judgements according to criteria that vary from state to state.

Practical advice for enforcement abroad

Cross-border enforcement has its pitfalls:

1. Check for the existence of an applicable bilateral or multilateral treaty
2. Anticipating the cost and duration of proceedings. In the United Kingdom, since Brexit, enforcement has been governed by ordinary law, entailing significant costs.
3. Find out about immunities from execution. Article L.111-1-2 of the Code of Civil Enforcement Procedures lays down strict conditions for enforcement against a foreign State
4. Identify the assets subject to seizure in the country of enforcement. The Court of Cassation considers that an asset must simply have "a link with the entity against which the proceedings are brought" (Civ. 1re, 3 November 2021, no. 19-25.404).
5. Assessing the need for a preliminary protective measure

Cross-border enforcement requires a tailored strategy. In a recent case, a French SME was trying to enforce a judgment against a German company. A notification problem almost compromised enforcement. The intervention of a professional familiar with the specifics of German law saved the proceedings.

The consequences of an error can be serious. A simple omission of a formality can delay performance or render it null and void. This is where expertise and experience in international procedures come into their own.

Our firm has a network of correspondents in over 40 countries. This collaboration helps to secure cross-border enforcement and avoid costly mistakes. Do not hesitate to consult us to assess the chances of success of your cross-border enforcement and define the best strategy.

Sources

• Code of Civil Procedure, article 509
• Code of Judicial Organisation, article R. 212-8
• Code of civil enforcement procedures, article L.111-1-2
• Court of Cassation, 1st Civil Division, 20 February 2007, Appeal no. 05-14.082 (Cornelissen ruling)
• Court of Cassation, 1st Civil Division, 3 November 2021, Appeal No. 19-25.404
• Regulation (EU) no. 1215/2012 of 12 December 2012 (Brussels Ia)
• Regulation (EU) n°805/2004 of 21 April 2004 (European Enforcement Order)
• Regulation (EU) n°1896/2006 of 12 December 2006 (European order for payment)
• Regulation (EU) n°861/2007 of 11 July 2007 (European Small Claims Procedure)
• Regulation (EU) No 655/2014 of 15 May 2014 (Attachment of bank accounts)
• Regulation (EU) no. 2019/1111 of 25 June 2019 (Brussels II ter)
• Lugano Convention of 30 October 2007
• Hague Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments