Recovering a debt can sometimes be an obstacle course. When amicable attempts fail, the creditor must arm himself with an essential document: the writ of execution. Without it, it is impossible to initiate enforcement proceedings and force a recalcitrant debtor to honour his obligations.
This fundamental requirement is enshrined in Article L.111-2 of the French Code of Civil Enforcement Procedures (CPCE): "A creditor in possession of a writ of execution recording a claim that is due and payable may enforce it against the debtor's assets in accordance with the conditions applicable to each enforcement measure.
The different types of enforceable title
The law precisely defines the acts constituting enforceable titles. Article L.111-3 of the CPCE sets out a restrictive list.
Court rulings
The most common titles are judgements and rulings by the courts or administrative tribunals. These decisions must be enforceable, i.e. no longer subject to a suspensive right of appeal.
Examples:
- Judgments of the judicial and commercial courts
- Court of Appeal and Court of Cassation rulings
- Summary orders
- Payment orders after expiry of the opposition period
A ruling by the 2nd Civil Chamber of the Court of Cassation on 4 June 2020 (no. 19-12.727) stated that "a ruling which simply confirms an enforceable judgment does not deprive it of its enforceability or of its res judicata status".
Beware of injunction to pay orders: they are not enforceable until one month after they have been served (Civ. 2e, 13 Sept. 2007, no. 06-14.730).
Notarial deeds
Notarised deeds bearing the executory clause are also among the enforceable titles set out in article L.111-3, 4° of the CPCE.
These authentic instruments, drawn up by a public official, enable enforcement measures to be taken directly without the need for a court order.
The Court of Cassation has confirmed that a creditor may simultaneously hold two enforceable titles for the same claim (Civ. 3e, 24 March 2015, no. 14-10.077), breaking with its previous case law.
The formal validity of these deeds is essential. The 2nd Civil Chamber ruled on 7 June 2012 (no. 11-17.759) that notarial deeds that do not meet the requirements of article 21 of the Decree of 26 November 1971 lose their authentic character and their status as enforceable instruments.
Titles issued by bailiffs
Two types of securities fall into this category:
- Certificate of non-payment of a cheque (art. L.111-3, 5° CPCE)
- The document issued by the bailiff in the event of an agreement between the creditor and debtor under the simplified procedure for the recovery of small claims (art. L.111-3, 5° and L.125-1 CPCE)
The latter, introduced by the Macron law of 6 August 2015, concerns claims not exceeding €4,000 (art. R.125-1, al. 2 CPCE).
Case law clearly distinguishes these documents from court decisions. Thus, according to the 2nd Civil Chamber (7 Jan 2016, no. 14-26.449), a certificate of non-payment of a cheque does not allow the interest rate increase provided for in article L.313-3 of the Monetary and Financial Code to be applied.
Approved agreements and settlements
Article L.111-3, 1° of the CPCE recognises "agreements on which the courts or administrative tribunals have conferred enforceability" as enforceable instruments.
This includes
- Conciliation reports signed by the judge and the parties
- Approved transactions
- Approved mediation agreements
However, the 2nd Civil Chamber pointed out (1 Feb 2018, no. 16-21.400) that a settlement, even one that has been approved, is only enforceable if it establishes a liquid and payable claim.
Divorce proceedings by mutual consent
Private-signature divorce deeds countersigned by lawyers and filed with a notary have been enforceable instruments since the law of 18 November 2016 on the modernisation of justice in the 21st century.
Article L.111-3, 4° bis of the CPCE has been specifically amended to include them in the list of enforceable titles.
This major innovation means that the obligations contained in the divorce agreement (alimony, compensatory allowance, etc.) can be enforced without recourse to a judge.
Administrative documents
Public authorities have the privilege of drawing up their own enforceable instruments. Article L.111-3, 6° of the CPCE refers to "instruments issued by legal persons governed by public law qualified as such by law".
Article L.252 A of the Livre des procédures fiscales (French Tax Procedures Code) specifies that this applies to "orders, statements, rolls, notices of assessment, collection orders or revenue orders" issued by the State, local authorities or public establishments with a public accountant.
The amended Finance Act of 29 December 2015 created a simplified debt attachment procedure for the benefit of these bodies (art. L.211-2 CPCE).
The European Enforcement Order
Regulation 805/2004 of 21 April 2004 created the European Enforcement Order for uncontested claims.
This mechanism allows a judgment given in a Member State to be enforced without going through an exequatur procedure. However, the CJEU has clarified that this mechanism does not apply where the debtor has not been informed of the address of the competent court (CJEU, 28 Feb 2018, aff. C-289/17).
The 2nd Civil Chamber ruled that the enforcement judge must order the release of an attachment based on a European enforcement order where the certified foreign decision has been annulled (6 Jan 2012, no. 10-23.518).
More recently, Regulation 1215/2012/EU, known as "Brussels I bis", abolished exequatur between Member States. Since 10 January 2015, judgments given in one Member State are enforceable by operation of law in the other Member States.
Obtaining a writ of execution: a necessary step
The writ of execution remains the key to enforcement procedures. Without it, a bailiff cannot proceed with any seizure for sale, attachment for payment or seizure of property.
In the absence of a writ of execution, only precautionary measures may be considered, but these will never result in actual payment unless a writ of execution is subsequently obtained.
You should also keep an eye on limitation periods. While court rulings can be enforced for 10 years, notarial deeds are time-barred depending on the nature of the claim they establish (Cass., ch. mixte, 26 May 2006, no. 03-16.800).
A common mistake is to confuse a simple acknowledgement of debt with a writ of execution. Only a notarised deed bearing the executory clause or a court judgment can be used to initiate compulsory enforcement measures.
Informed advice can help you choose the most appropriate route to obtain an enforcement order quickly and avoid your claim becoming time-barred during the process.
Sources
- Code des procédures civiles d'exécution, articles L.111-2, L.111-3, L.125-1, L.211-2, L.213-2, R.125-1, L.523-2
- Court of Cassation, 2nd Civil Chamber, 4 June 2020, no. 19-12.727
- Court of Cassation, 2nd Civil Division, 13 September 2007, no. 06-14.730
- Court of Cassation, 3rd Civil Chamber, 24 March 2015, no. 14-10.077
- Court of Cassation, 2nd Civil Chamber, 7 June 2012, no. 11-17.759
- Court of Cassation, 2nd Civil Division, 7 January 2016, no. 14-26.449
- Court of Cassation, 2nd Civil Chamber, 1 February 2018, no. 16-21.400
- Court of Cassation, 2nd Civil Division, 6 January 2012, no. 10-23.518
- Court of Cassation, mixed chamber, 26 May 2006, no. 03-16.800
- CJEU, 28 February 2018, Case C-289/17
- Regulation 805/2004 of 21 April 2004 creating a European Enforcement Order
- Regulation 1215/2012/EU (Brussels Ia)
- Law no. 2015-990 of 6 August 2015 (Macron law)
- Law no. 2016-1547 of 18 November 2016 on the modernisation of the justice system for the 21st century
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