In a long-awaited opinion, the Court of Cassation confirms that the enforcement judge still has jurisdiction to hear challenges to movable enforcement measures.
This clarification was necessary following the distribution of a very clumsy ministerial circular, which gave rise to countless complications in the courts.
Reproduction in extenso of the judgment :
Second Civil Chamber
Having regard to Articles L. 441-1 et seq. of the Code of Judicial Organisation and 1031-1 et seq. of the Code of Civil Procedure:
The Second Civil Chamber of the Court of Cassation has delivered this opinion on the report of Mrs Chevet, Conseiller référendaire , and the conclusions of
Mr Adida-Canac, Advocate General, heard in his oral observations.
Connection
1. Because they are related, requests for opinions No H25-70.003, G25-70.004, J25-70.005 and K25-70.006 are joined.
Statement of request for advice
2. On 23 January 2025, the Court of Cassation received four requests for an opinion submitted on 20 January 2025 by the enforcement judge of the Créteil judicial court (Sucy-en-Brie local court), pursuant to Articles L. 441-1 et seq. of the Code of Judicial Organisation and 1031-1 et seq. of the Code of Civil Procedure, in connection with attachment of earnings proceedings brought before him.
3. The requests, drafted in identical terms, are as follows:
"What is the scope of the Constitutional Council's decision of 17 November 2023 to repeal part of Article L. 213-6 of the Code of Judicial Organisation (Cons. cons. 17 Nov 2023, no. 2023-1068 QPC) on the jurisdiction of the enforcement judge?
Does the Constitutional Council's decision of 17 November 2023 to repeal part of article L. 213-6, paragraph 1, of the Code de l'organisation judiciaire mean that the enforcement judge no longer has jurisdiction over attachment of earnings, a jurisdiction determined by article L. 213-6, paragraph 5?
And, if so, should we consider that the attachment of work-related remuneration is a personal or movable action within the meaning of Table IV-li annexed to the Code of Judicial Organisation, allowing it to be dealt with by the juge de proximité, subject to the jurisdictional thresholds?
Examination of the request for an opinion
4. Article L. 213-6 of the Code de l'organisation judiciaire provides, in its version prior to 1 December 2024 :
"The enforcement judge has exclusive jurisdiction over difficulties relating to enforceable titles and disputes arising in connection with forced enforcement, even if they concern the substance of the law, unless they fall outside the jurisdiction of the courts. Under the same conditions, it authorises precautionary measures and hears disputes relating to their implementation.
The enforcement judge has jurisdiction, subject to the same reservation, over the seizure of property procedure, disputes arising in connection therewith and claims arising from or directly related to this procedure, even if they relate to the substance of the law, as well as the resulting distribution procedure.
Subject to the same proviso, it hears claims for compensation based on the wrongful execution or non-execution of enforcement measures or precautionary measures.
It deals with the attachment of remuneration, with the exception of claims or defences that fall outside the jurisdiction of the courts.
The enforcement judge shall also exercise the specific powers conferred on him by the Code of Civil Enforcement Procedures.
5. According to Article 62 of the Constitution, a provision declared unconstitutional on the basis of Article 61-1 is repealed with effect from the publication of the decision of the Constitutional Council or from a later date fixed by that decision. The Constitutional Council shall determine the conditions and limits under which the effects produced by the provision may be called into question. The decisions of the Constitutional Council are not subject to appeal. They are binding on the public authorities and on all administrative and jurisdictional authorities.
6. In a decision of 17 November 2023 (Cons. const., 17 November 2023, no. 2023-1068 QPC), the Constitutional Council ruled, in its operative part, that the words "disputes arising in connection with enforcement" in the first paragraph of Article L. 213-6 of the Code of Judicial Organisation were contrary to the Constitution.
7. The scope of this decision is open to two interpretations.
8. This could be interpreted to mean that, since 1 December 2024, the enforcement judge no longer has jurisdiction to rule on challenges to movable enforcement measures.
9. However, the Court of Cassation's response to a request for an opinion must be consistent with its case law. According to the settled case law of the Court of Cassation, the absolute authority of the decisions of the Constitutional Council attaches not only to the operative part, but also to the reasons which are the necessary support (Plenary Court, 10 October 2001, Appeal no. 01-84.922, Bull. 2001, Plenary Court, no. 11; First Civil Court, 15 December 2011, Appeal no. 10-27.473, published; Second Civil Court, 7 February 2019, Appeal no. 17-27.099).
10. This case law of the Cour de cassation follows on from that of the Conseil constitutionnel, which holds that the authority of the decisions referred to in this provision attaches not only to their operative part but also to the reasons which are their necessary support and constitute their very basis (Cons. const., 16 January 1962, no. 62-18; Cons. const., 25 February 2022, no. 2021-974 QPC).
11. The Conseil d'Etat has also ruled that the authority of the decisions of the Conseil constitutionnel attaches to the operative part of the decision and to the reasons that support it (CE, 2 March 2011, no. 323830; CE, 4 May 2012, no. 337490).
12. In the grounds of the aforementioned decision of 17 November 2023, the Conseil constitutionnel noted that the applicant criticised the provisions of Articles L. 213-6 of the Code de l'organisation judiciaire, L. 231-1 and L. 233-1 of the Code of Civil Enforcement Procedures for not providing, in the event of a sale by auction following a seizure of intangible rights, for the debtor to challenge the amount of the upset price before the enforcement judge, and deduced from this that the priority question of constitutionality concerned the words "disputes arising in the course of enforcement" in the first paragraph of Article L. 213-6 of the Code of Judicial Organisation (paragraphs 4 and 5).
13. It states that, pursuant to the aforementioned Article L. 231-1, a creditor in possession of a writ of execution may proceed with the seizure of intangible rights held by his debtor and with their forced sale, and that the impugned provisions of Article L. 213-6 of the Code de l'organisation judiciaire give jurisdiction to the enforcement court to hear disputes arising in connection with forced execution (paragraphs 9 and 10).
14. It notes that it follows from the case law of the Cour de cassation, as set out in the judgment referring the question prioritaire de constitutionnalité, that the enforcement court does not have jurisdiction to hear a challenge to the amount of the upset price set unilaterally by the creditor in the case of a sale by auction of the seized intangible rights, and that no other provision allows the debtor to challenge that amount before the court (paragraphs 11 and 12).
15. It concludes from this that, in view of the significant consequences that the fixing of the amount of the upset price of the seized rights is likely to have for the debtor, it is for the legislature to introduce a means of appeal and that it follows from the foregoing that the contested provisions are vitiated by a lack of negative competence in conditions affecting the right to an effective judicial remedy (paragraphs 13 and 14).
16. It postpones the date of repeal until 1 December 2024 and states that, in order to put an end to the unconstitutionality established as from the publication of the present decision, it should be held that, until the entry into force of a new law or, at the latest, until 1 December 2024, the debtor is entitled to contest the amount of the upset price for the auction of the seized intangible rights before the enforcement judge under the conditions provided for in the first paragraph of Article L. 213-6 of the Code of Judicial Organisation. 213-6 of the Code de l'organisation judiciaire (paragraphs 17 and 18).
17. The operative part of the Constitutional Council's decision and the reasons set out in paragraphs 12 to 16, which are its necessary support and constitute its very basis, lead the Cour de cassation to consider that the partial repeal of the first paragraph of Article L. 213-6 of the Code de l'Organisation Judiciaire, which is limited to the words 'disputes arising in the course of enforcement', only has an impact on the text insofar as it does not introduce an appeal to contest the upset price in the system for the seizure of intangible rights and that, consequently, it does not have the effect of depriving the enforcement court of the exclusive jurisdiction that it derives from the unrepealed provisions of that paragraph.
18. It follows that the Cour de cassation is of the opinion that, pending the adoption of a legislative provision introducing an appeal by the debtor against the upset price in matters of seizure of intangible rights, the enforcement judge remains competent, within the limits of the decision of the Conseil constitutionnel of 17 November 2023, pursuant to Article L. 213-6, paragraph 1, of the Code de l'organisation judiciaire, in the version resulting from the operative part of that decision, to hear challenges to movable enforcement measures.
19. In addition, the Cour de cassation is of the opinion that the partial repeal of the first paragraph of Article L. 213-6 of the Code de l'organisation judiciaire has no effect on the fifth paragraph, under which the enforcement court hears attachments of remuneration, with the exception of claims or defences that fall outside the jurisdiction of the courts, which means that the enforcement court continues to have jurisdiction to rule on the creditor's claim and related disputes.
20. The answers to the first two questions make the third question irrelevant.
AT CONSEQUENCE, the Court :
IS OF THE OPINION THAT
1°/ Pending the adoption of a legislative provision introducing an appeal by the debtor against the upset price in matters of seizure of intangible rights, the enforcement judge remains competent, within the limits of the decision of the Constitutional Council of 17 November 2023, pursuant to article L. 213-6, paragraph 1, of the Code of Judicial Organisation, in the wording resulting from that decision, to hear challenges to movable enforcement measures;
2°/ the partial repeal of the first paragraph of article L. 213-6 of the Code de l'organisation judiciaire has no impact on the fifth paragraph, under which the enforcement judge hears attachment of earnings, with the exception of claims or defences that fall outside the jurisdiction of the courts, which means that the enforcement judge remains competent to rule on the creditor's claim and related disputes;
RULES THAT NO OPINION IS NECESSARY as to the remainder;
Drawn up in Paris and made available at the Court Registry on 13 March 2025, after examination of the request for an opinion at the sitting of 12 March 2025 at which the following were present, in accordance with Article R. 431-5 of the Code of Judicial Organisation: Ms Martine!, President, Ms Chevet, Conseiller référendaire rapporteur, Ms Durin-Karsenty, Conseiller doyen, Ms Grandemange,
M. Delbano, Mme Vendryes, Mme Gaillard, M. Waguette, conseillers, Mme Bohnert, M. Cardini, Mme Techer, Mme Latreille, Mme Bonnet, conseillers référendaires, M. Adida-Canac, avocat général, Mme Thomas, greffier de chambre.
This opinion has been signed by the Conseiller-Rapporteur, the President and the Registrar of the Chamber.
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