Your opponent has obtained a judgment. They can enforce it immediately – compel payment, seize your accounts, proceed with eviction – even as you file an appeal. Since 1 January 2020, this is the default rule.
Before the reform, filing an appeal was sufficient to freeze enforcement of the judgment. That era is over. Decree No. 2019-1333 of 11 December 2019 effected a complete reversal: provisional enforcement now applies by right to all first-instance decisions, unless an exception applies. This guide explains what that means, what remedies exist, and how to deploy them effectively.
What is provisional enforcement?
Provisional enforcement (exécution provisoire) is the faculty granted to the successful party – the creditor – to enforce a first-instance judgment immediately, despite the exercise of an ordinary remedy (appeal or opposition). In practice, it neutralises the suspensive effect normally attached to appeal: the creditor does not wait for the final decision to recover the debt.
Article 514 of the Code of Civil Procedure states: provisional enforcement enables the creditor to “pursue, at its own risk, the immediate enforcement of the judicial decision to which it attaches, despite the suspensive effect of the period for or exercise of the available remedy.”
The distinction from definitive enforcement
Definitive enforcement arises when the decision has acquired res judicata – the appeal period has expired or remedies have been exhausted (Article 500 CPC). At that stage, the creditor may enforce without risk of restitution.
Provisional enforcement, by contrast, concerns a decision still subject to reversal on appeal. It operates at the creditor’s risk (Article L. 111-10 CPCE). If the judgment is subsequently reversed, the creditor must restore what was obtained and compensate the debtor’s loss – without any fault being required (Cass. 2nd civ., 17 Sept. 2020, No. 19-17.721).
This dual nature – offensive tool for the creditor, major risk for the debtor – structures the entire regime.
The 2019 reform: provisional enforcement by right as the default
Before 2019: an exception
Under the former regime, the default was the suspensive effect of appeal. Filing an appeal automatically froze enforcement. Provisional enforcement could only be ordered in two cases: where statute expressly provided for it (summary orders, protective measures), or where the judge ordered it at its discretion when deemed “necessary.”
This regime had a well-known consequence: dilatory appeals. A condemned party could appeal with no genuine intention of arguing substance, solely to delay enforcement for the 18 to 24 months of appellate proceedings.
Decree 2019-1333: a complete reversal
The decree reversed the logic. Under Article 514 CPC, all first-instance decisions are enforceable by right on a provisional basis, unless statute or the decision itself provides otherwise. Appeal no longer suspends enforcement – it lets it run.
This text applies only to proceedings commenced from 1 January 2020. The Cour de cassation confirmed: applying Article 514-3 CPC to proceedings commenced before that date exceeds the court’s powers (Cass. 2nd civ., 13 Jan. 2022, No. 20-17.344).
| Criterion | Former regime (proceedings < 2020) | New regime (proceedings >= 2020) |
|---|---|---|
| Default | Suspensive effect of appeal – enforcement frozen | Provisional enforcement by right – immediate enforcement |
| Exception | Provisional enforcement by right for limited decisions + discretionary provisional enforcement | Judge may exclude if incompatible with the nature of the case (Art. 514-1) |
| Stopping enforcement by right | Manifest breach of adversarial principle + excessive consequences | Serious ground for annulment/reversal + manifestly excessive consequences (Art. 514-3) |
| Jurisdiction | First President of Court of Appeal | First President (or case management judge once designated) |
When the judge may still exclude provisional enforcement
The first-instance judge retains the faculty to exclude provisional enforcement by right, in whole or in part, if deemed “incompatible with the nature of the case” (Article 514-1 CPC). This must be specifically reasoned.
But this faculty is strictly circumscribed. It is irreducible for certain decisions whose very nature justifies immediate enforcement: summary orders, provisional measures, protective measures. And the judge may never exclude provisional enforcement solely because of doubts about the soundness of its own decision.
Discretionary provisional enforcement
Discretionary provisional enforcement subsists in areas where statute expressly provides the judge may order it. The most frequent case is employment litigation: Article R. 1454-28 of the Labour Code provides that certain awards – wages, termination indemnities, unfair dismissal damages – are enforceable by right up to nine months’ salary. Beyond that, provisional enforcement is discretionary.
The rule of contemporaneity
Article 516 CPC imposes a formal constraint: provisional enforcement may only be ordered by the decision it is intended to render enforceable. Once the judge is functus officio, it cannot return to add provisional enforcement.
Effects of provisional enforcement during appeal
Prerequisites for enforcement
The creditor cannot trigger enforcement upon pronouncement of the judgment. Three prerequisites must be met: service of the judgment on the debtor (Article 503 CPC); provision of any required guarantee; and possession of an enforceable copy.
Trap – implied acquiescence (Article 410 para. 2 CPC): A debtor who voluntarily executes a judgment without reservation risks this being treated as acquiescence amounting to waiver of appeal. Payment made under compulsion of regular enforcement does not constitute acquiescence. But voluntary payment, even partial, can be dangerous. In case of doubt, formulate express reservations.
Procedures available to the creditor
The creditor holding a provisionally enforceable title has access to the full range of enforcement procedures: garnishment on bank accounts, wage garnishment, seizure-sale of movable property, protective measures.
Two important limits in real property matters
Provisional enforcement does not permit everything. Two major limitations temper the creditor’s power. First, forced sale of real property cannot occur until after a definitive decision having acquired res judicata (Article L. 311-4 CPCE). Second, cancellation of a mortgage registration also requires a final judgment (Article 2440 Civil Code).
The creditor may nonetheless register a provisional judicial mortgage on the debtor’s property from the first-instance judgment – freezing the asset without selling it.
Enforcement at the creditor’s risk
This is the fundamental counterpart. Article L. 111-10 CPCE is clear: enforcement under a provisional title can only give rise, in case of reversal, to restitution and compensation – without any fault being required (Cass. 2nd civ., 17 Sept. 2020, No. 19-17.721).
The rule applies even following cassation of a confirmatory appellate decision: a creditor who enforced a first-instance judgment, confirmed on appeal then quashed, must also restore (Cass. 2nd civ., 31 Jan. 2019, No. 17-28.605).
How to stop provisional enforcement on appeal
This is the central question for the debtor who appeals. The answer is clear: only the First President of the Court of Appeal has jurisdiction, ruling in summary proceedings. No other court may intervene (Cass. 2nd civ., 17 Feb. 2011, No. 10-15.115). Once the case management judge (conseiller de la mise en etat) is designated, jurisdiction transfers to that judge.
The two cumulative conditions of Article 514-3 CPC
For proceedings commenced from 1 January 2020, stopping provisional enforcement by right requires two conditions that must both be satisfied:
- The existence of a serious ground for annulment or reversal of the decision – an argument that, if accepted, would lead the Court of Appeal to reverse
- A risk of manifestly excessive consequences if enforcement continues
Neither alone suffices. An excellent ground of appeal does not justify stopping provisional enforcement if financial consequences remain bearable for the debtor. And serious consequences for the debtor do not suffice if the appeal rests on no serious ground.
The notion of “manifestly excessive consequences”
This is the most demanding criterion to establish. Case law is settled since the decision of 12 November 1997 (Cass. 2nd civ., No. 95-20.280): the manifestly excessive character is assessed exclusively by reference to the debtor’s situation – its payment capacity, and the opposing party’s capacity to reimburse in case of reversal. It is not assessed by reference to the regularity or soundness of the judgment.
In concrete terms: it is not enough that enforcement is painful or financially uncomfortable. A flagrant imbalance must be demonstrated – risk of business cessation, impossibility of reimbursement in case of reversal due to the creditor’s insolvency, inherently irreparable harm. The burden of proof falls on the applicant: accounts, bank statements, accountant’s certificates – bare allegation never suffices.
The alternative: consignment instead of full stay
Where the conditions for a stay are not met, an alternative exists. Article 521 CPC gives the First President power to order consignment of all or part of the award – sums deposited with a sequestrator or the Caisse des Depots rather than paid directly to the creditor. This power is discretionary and independent of the manifestly excessive consequences condition (Cass. 2nd civ., 27 Feb. 2014, No. 12-24.873).
Consequences of reversal of the enforced judgment
If the Court of Appeal reverses the judgment that had been enforced, the situation reverses entirely.
The obligation of restitution
The creditor must restore the debtor to its rights. Restitution is made in kind if possible, or by equivalent if restitution in kind has become impossible (Cass. 2nd civ., 13 Apr. 2023, No. 21-11.716). For pecuniary awards, restitution includes the capital paid and interest from the date of payment – not from notification of the reversing judgment (Cass. soc., 28 Oct. 1981, No. 79-42.537).
Strict liability without fault
The rule is long-established, constant and severe: provisional enforcement operates at the creditor’s risk. In case of reversal, the creditor compensates the debtor’s loss – without the debtor needing to prove any fault (Article L. 111-10 CPCE; Cass. 2nd civ., 17 Sept. 2020, No. 19-17.721). This strict liability is the necessary counterpart of the immediate efficacy granted to the creditor.
This creates in practice a duty of vigilance: before initiating heavy enforcement measures, the creditor must assess whether its own solvency will permit reimbursement in case of reversal.