The invoicing of the acts of a judicial commissioner, a regulated profession created by the merger of bailiffs and auctioneers, can often seem opaque to the public. Whether it involves serving a decision, collecting a debt or carrying out a seizure, each intervention generates costs. However, these costs are not set arbitrarily. They are governed by a strict legal framework, mainly defined by the French Commercial Code, which aims to ensure both fair remuneration for the professional and predictability of expenditure for the public. Understanding the structure of these fees is essential for anyone faced with enforcement proceedings or who needs to assert their rights. This article sets out the rules applicable to services, whether they are subject to fees or not, and explains the composition of emoluments, fees, costs and disbursements, as well as the obligations that govern these services.
General principles of the regulated fees of the judicial commissioner
The remuneration of the judicial commissioner for a large part of his activities is not free, but is governed by a regulated tariff. This regulation is justified by the nature of his missions, which fall within the scope of a public service and are often carried out within the framework of a monopoly. It should be noted that the general framework has been radically reformed by the Order of 26 February 2018. Before going into the details of billing, it is essential to understand the status and organisation of the profession of judicial commissioner, which provide a framework for its mission and justify the regulation of its fees.
The legal framework and objectives of pricing
The fees charged for acts performed by commissaires de justice are governed primarily by articles L. 444-1 et seq. of the French Commercial Code. The aim of this legislation, which stems from the reforms of the regulated professions, is to provide greater transparency and predictability. The aim is twofold: to ensure fair access to the public justice service for all citizens and to guarantee balanced remuneration for professionals. For documents falling within their monopoly (service of documents, enforcement, etc.), the fees are set by joint order of the Ministers of Justice and the Economy. However, for activities carried out in competition with other professions, such as the amicable collection of debts, remuneration is unrestricted and must be the subject of a fee agreement. These fees are set in agreement with the client, unlike a service for which a fee is charged.
Rate-setting method: relevant costs and reasonable remuneration
Regulated tariffs are not set randomly; they are based on a precise economic method, defined in articles L. 444-2 and R. 444-6 of the French Commercial Code, designed to achieve a balance. This calculation method aims to cover the «relevant costs» of the service provided. These costs include all the expenses of a study: staff salaries, rents, technological investments, social charges, etc. The aim is to reflect the real cost of producing the documents. In addition to costs, the tariff must allow for «reasonable remuneration» for the professional, calculated on the basis of objective criteria. For each profession, the government assesses a target average profit rate to ensure the economic viability of the offices while preventing excessive profits on public service work.
Tariff equalisation: a regulatory mechanism
The tariff system incorporates an equalisation mechanism, as set out in article L. 444-2 of the French Commercial Code. This principle of solidarity is designed to correct economic imbalances between different types of document and geographical areas. In practical terms, the fees received for highly profitable acts can be used to compensate for the low return on other acts that are legally essential but less lucrative. The aim of this system is to promote uniform access to services throughout the country and to support the establishment of new professionals in less economically dense areas, thereby guaranteeing complete territorial coverage of the public justice service.
Detailed structure of the commissioner's fees and expenses
A judicial commissioner's invoice is made up of several distinct elements. It is important to understand the nature of each in order to analyse the total cost of a procedure correctly. The main distinction is between emoluments, which pay for the act itself, and costs or disbursements, which are reimbursements for additional expenses incurred on behalf of the client.
Fixed fees: application of multiplying factors
For the majority of regulated documents, the regulations provide for a fixed fee, expressed in euros in the tables in article A. 444-10 et seq. This is the case, for example, for a writ of summons or the service of a judgment. These fixed fees are the consideration for acts falling within the scope of its powers and its monopoly in forced execution, This is a basic amount that guarantees remuneration for procedures that are essential to the functioning of the justice system. However, this basic amount is often adjusted. Article A. 444-46 of the French Commercial Code introduces a multiplier system when the document concerns a financial obligation. Depending on the amount of the claim at stake, the fixed fee is multiplied by 0.5 (for a claim of €128 or less), by 1 (between €128 and €1,280) or by 2 (over €1,280).
Proportional fees and right to institute proceedings (dep)
For debt collection activities, in addition to the fixed fee for each act, the court commissioner charges a proportional fee. This proportional fee is crucial. Article A. 444-31 of the French Commercial Code sets a degressive proportional fee based on the sums actually recovered or collected, which is payable by the debtor. At the same time, article A. 444-32 provides for a fee, also proportional, this time payable by the creditor. At the very beginning of the recovery process, the judicial commissioner collects a «right to initiate proceedings» (DEP), sometimes referred to as the recovery fee. This fee, set out in article A. 444-15 and updated in article A. 444-31, is a one-off fee for the same debt and its amount varies according to degressive brackets. The right to initiate proceedings is a key component of the overall cost of all civil enforcement procedures, This is the process for which the other fees will be calculated.
Additional holiday allowances and surcharges for emergencies
Some services cannot be priced on a flat-rate basis. This is the case for operations that require time that cannot be predicted, such as supervising a sale or assisting with a lengthy eviction. For these situations, the judicial commissioner receives an additional «session» fee, invoiced per period of time spent, generally per half-hour, with each half-hour started being due in full, in accordance with article A. 444-47 of the French Commercial Code. In addition, if a service has to be carried out urgently at the customer's request (for example at night, at a late hour, on a Sunday or on a public holiday), the fixed fees may be increased under the conditions set out in the tariff, in order to compensate for the particular constraints of the intervention.
Reimbursement of costs and expenses: flat-rate or actual, and vat
In addition to their remuneration (emoluments), judicial commissioners charge for the reimbursement of expenses incurred on behalf of the client. A distinction is made between «disbursements» and «costs». Disbursements are sums advanced to third parties for the purposes of the assignment (locksmith's fees for opening a door, removal expenses, tax, etc.). They are reimbursed at actual cost on presentation of receipts. Travel expenses are covered by a fixed allowance set by article A. 444-48 of the French Commercial Code. It should be noted that the decree of 16 May 2022, which set the rules for collecting and distributing these allowances via a compensation service, was annulled by the Conseil d'État on 5 February 2024, with effect from 1 June 2024, which may have created a period of uncertainty over their management. Lastly, most fees and charges are subject to Value Added Tax (VAT) at the current rate.
Price discounts: conditions and limits
The law authorises the commissaires de justice to grant discounts on their fees, but in a very restricted manner; this possibility does not apply to free fees. Article L. 444-2 of the French Commercial Code provides that discounts may be granted when the fee is proportional to the value of an asset or a right and the basis of the fee exceeds a certain threshold. The discount rate, which is a percentage, is capped by article R. 444-10 of the same code (generally 20 %, and up to 40 % for the highest base brackets). This possibility of discount must be applied in a fixed and identical manner to all the study's customers, thus guaranteeing equal treatment.
Specific obligations of the commissaire de justice in tariff matters
In addition to receiving remuneration, the judicial commissioner has a number of strict duties, aimed at protecting the rights of creditors and debtors and ensuring the transparency of the financial flows that pass through his office.
The obligation to make provisions: principles and legal exceptions
In principle, before carrying out an act, the commissaire de justice must ask his client to pay a deposit sufficient to cover his fees and foreseeable costs, as stipulated in article R. 444-52 of the French Commercial Code. This is a guarantee for the professional. However, it should be noted that article R. 444-53 provides for some important exceptions. The advance cannot be demanded in an emergency, or if the creditor has insufficient resources to make the advance. Nor is it due for the recovery of certain debts, in particular maintenance debts, debts arising from an employment contract, or when the request is made by a public accountant. One of the exceptions to the obligation to make an advance is linked to the validity of the enforcement order held by the creditor, particularly in the case of a court order benefiting from legal aid.
Repayment of sums collected: deadlines and penalties
When a commissaire de justice collects funds on behalf of a creditor, he is required to pay them back to the creditor within strict time limits, as set out in article R. 444-56 of the French Commercial Code. The deadline is a maximum of three weeks for a cash payment and six weeks for other means of payment. If the debtor pays by successive instalments, these periods are increased to six weeks and three months respectively. Failure to comply with this payment obligation constitutes serious professional misconduct, which may result in disciplinary action being taken against the commissaire de justice, in order to protect the creditor's financial rights.
Right of retention: scope, limits and exceptions
To guarantee payment of his own costs and fees, the judicial representative has a right of retention over the sums he has collected on behalf of the creditor, as provided for in article R. 444-15 of the French Commercial Code. He may therefore deduct his remuneration from the funds recovered before paying them over. However, there are imperative limits to this right. Article R. 444-54 expressly excludes it when the funds come from the recovery of a maintenance claim (alimony, compensatory allowance). Similarly, this right cannot be exercised over sums recovered on behalf of a public accountant. These exceptions are designed to protect claims that are deemed to have priority by law.
The obligation to display fees and transparency for litigants
In the interests of transparency, article L. 444-4 of the French Commercial Code requires commissaires de justice, like other regulated professions, to display their fees in a visible and legible manner at their place of practice and on their website. This obligation to provide information enables the public to know in advance the cost of regulated services and to ensure that invoicing complies with the legal framework. Failure to comply with this obligation may result in an administrative fine.
Consequences of breaches of pricing rules: responsibilities and penalties
Failure to comply with pricing rules, whether through overcharging, lack of transparency or improper withholding of funds, exposes the commissaire de justice to serious consequences. In the event of a proven breach of the pricing rules, the commissioner may be held liable, giving rise to various claims possible remedies in the event of misconduct or abuse on the part of the litigant.
Civil and criminal liability of the commissaire de justice
Any fault committed by the commissaire de justice in the performance of his duties that causes harm to his client, the debtor or a third party may give rise to civil liability. In terms of invoicing, this may concern the collection of undue fees that cause financial loss. The professional may then be ordered to repay the sums wrongly received and pay damages. In the most serious cases, such as the disclosure of confidential information obtained in the course of proceedings (breach of professional secrecy), the professional may also be held criminally liable.
Disciplinary sanctions: warning, reprimand, ban, dismissal
In addition to legal proceedings, any breach of professional obligations, including those relating to fees and ethics, may be the subject of disciplinary proceedings. The action is brought before a specialised court, the disciplinary chamber. The scale of penalties, as set out in the Order of 13 April 2022, is broad: it ranges from a simple warning to a reprimand, a temporary or permanent ban on practising, and even dismissal. Abusive invoicing, repeated delays in transferring funds or a lack of transparency may justify such penalties. Although disciplinary sanctions are the responsibility of the disciplinary board, the role of the enforcement judge (JEX) is central, as it is the court with jurisdiction to rule on disputes relating to the enforcement costs themselves.
Order to pay execution costs and unnecessary acts
The judge has the power to control the costs incurred. If a court commissioner has carried out acts that are deemed to be unjustified, such as a superfluous protective attachment, or null and void through his own fault, article 698 of the Code of Civil Procedure provides that he may be personally liable for the corresponding costs. This provision is intended to discourage abusive procedures or unnecessary diligence that unnecessarily increase the cost of enforcement for the debtor or creditor. If, for example, he initiates a seizure and sale of movable property for a small claim when a seizure and sale was possible, or if his seizure report is poorly drafted, he may be held liable. As a legal professional, the commissaire de justice has an obligation to exercise restraint and proportionality in the actions he chooses to take.
The complexity of the rules governing fees and the financial stakes involved can make it essential to consult a professional. If you are faced with a dispute concerning the fees or costs of a court commissioner, it is advisable to consult a lawyer specialising in enforcement procedures to defend your rights.
Sources
- Commercial Code, articles L. 444-1 et seq (general principles of regulated tariffs)
- French Commercial Code, articles R. 444-49 to R. 444-57 (regulations specific to commissaires de justice)
- Commercial Code, articles A. 444-10 to A. 444-52 (fee scales)
- Code of civil enforcement procedures
- Order no. 2016-728 of 2 June 2016 on the status of judicial commissioner
- Order no. 2022-544 of 13 April 2022 on the ethics and discipline of ministerial officers
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