Enforcement: how does it work?

You've won your case before the courts, but the other party remains silent. That's where enforcement comes in, a set of procedures for forcing a recalcitrant debtor to meet his obligations. Let's take a look at how this mechanism, which is essential to the effectiveness of our legal system, works.

What is forced execution?

Enforcement is the set of procedures that enable a creditor to force a debtor to fulfil his obligations, particularly when the debtor refuses to do so voluntarily. It is a necessary extension of legal proceedings, as a court decision that could not be enforced would lose all usefulness.

This fundamental principle is set out in Article L. 111-1 of the Code of Civil Enforcement Procedures: "Any creditor may, under the conditions laid down by law, compel his defaulting debtor to fulfil his obligations towards him.

This right is exercised in accordance with a balance between the creditor's legitimate interest in recovering its debt and the protection of the debtor's fundamental rights.

Enforcement can take different forms depending on the nature of the obligation concerned:

• For an obligation to pay: seizure of bank accounts, wages, movable or immovable property,
• For an obligation to do or give: penalty payments, evictions, forced surrender of property.

Enforcement is not always preceded by an amicable approach or a warning. The creditor must be able to take advantage of the element of surprise to prevent the debtor from making arrangements not to pay.

What are the conditions for compulsory execution?

A number of cumulative conditions must be met in order to initiate enforcement proceedings.

Liquid and due claims

According to the article L. 111-2 of the Code of Civil Enforcement ProceduresIn order to proceed with a compulsory enforcement measure, the creditor must be in possession of :

1. a writ of execution : the claim must be based on a valid document of title that clearly establishes the creditor's rights.
2. establishing a claim for cash : the amount of the claim must be fixed or, at the very least, determinable by a simple mathematical calculation without requiring a new assessment by the parties or the court. Article L111-6 specifies that a "A claim is liquid when it is valued in money or when the security contains all the elements required for its valuation.
3. and payable : the claim must have fallen due, which means that the payment period has expired. A claim subject to a term or condition that has not yet been fulfilled cannot be enforced.

For example, if you have obtained a judgment awarding you €10,000 in damages payable within two months, your claim will only become due and payable at the end of that period, and it is only then that you will be able to initiate compulsory enforcement measures.

The executory clause

In order to enforce a debt, the creditor must be in possession of a writ of execution. Article L. 111-3 of the Code of Civil Enforcement Procedures sets out a restrictive list of these instruments:

1. Judicial or administrative decisions and agreements to which these courts have conferred enforceability.
2. Foreign deeds and judgments and arbitration awards declared enforceable
3. Extracts from conciliation reports signed by the judge and the parties
4. Notarial deeds bearing the executory clause
5. Deeds issued by bailiffs in the event of non-payment of a cheque or in the event of an agreement between the creditor and the debtor
6. Certificates issued by legal entities governed by public law or decisions to which the law attaches the effects of a judgment

The executory clause, affixed to court rulings and notarial deeds, is what gives them the binding force necessary for enforcement. Its content is determined by law: "Consequently, the French Republic instructs and orders all bailiffs to enforce the said decision...".

This formula is not a mere formality: it reflects the delegation by the State of its power of coercion to a ministerial officer (the commissaire de justice) to enforce court decisions.

The significance

In most cases, before any enforcement action is taken, the enforceable title must be served on the debtor. Service is the official delivery of a document by a court officer to the addressee.

This meaning fulfils several essential functions:

• It officially informs the debtor of the existence of the enforcement order,
• It specifies the nature and extent of its obligations,
• It indicates the consequences of non-performance,
• It gives rise to certain legal deadlines.

In certain special cases, such as protective seizures, enforcement may take place before the writ of execution has been served.

Execution times

Enforcement, while legitimate, must respect certain time limits in order to preserve the dignity and privacy of the persons concerned. Article L. 141-1 of the Code of Civil Enforcement Procedures sets strict rules:

"No enforcement measure may be carried out on a Sunday or public holiday, unless authorised by the judge in case of necessity.

No enforcement measure may be commenced before 6 a.m. and after 9 p.m. without the authorisation of the enforcement judge, except in cases of necessity where enforcement has been commenced during legal hours and has not ended by 9 p.m.".

These restrictions are designed to reconcile the efficiency of enforcement procedures with respect for debtors' private and family lives. However, exceptions may be granted by the enforcement judge in exceptional circumstances, for example where there is a risk of imminent disappearance of assets.

Who is involved in the execution?

Enforcement involves several parties whose roles are strictly defined by law.

The French Republic

The reference to the French Republic in the formule exécutoire is not simply a tradition: it symbolises that enforcement is exercised on behalf of the public authorities. The State temporarily delegates its power of coercion to the commissioner of justice to enforce court decisions.

This delegation means that the court commissioner may, if necessary, request the assistance of the police or gendarmerie to overcome any resistance. Article L. 153-1 of the Code of Civil Enforcement Procedures states that "The State is obliged to assist in the enforcement of judgments and other enforceable titles.

The Public Prosecutor's Office

The public prosecutor plays an important role in enforcement:

• He may call in the police to assist the court commissioner,
• It ensures that individual freedoms are respected in enforcement proceedings,
• It intervenes in certain specific procedures, such as attachment of earnings or eviction.

Its involvement ensures that the enforcement process respects the fundamental rights of the parties involved.

The commissioner of justice

The judicial commissioner (who replaced the judicial officer on 1 July 2022) is the key player in the enforcement process. As a ministerial and public officer, he is vested with prerogatives of public authority that enable him to implement enforcement measures.

It has a wide range of enforcement tasks:

• Serve procedural documents and enforcement orders,
• Implement various enforcement measures (seizures, evictions, etc.),
• Drawing up minutes that are authentic until proven otherwise,
• Amicable or judicial debt collection,
• Carrying out observations at the request of the parties or the judge.

The judicial commissioner is subject to a strict statute and precise ethical rules. They must act impartially, even if mandated by the creditor, and respect the debtor's dignity throughout the proceedings.

Immunity from execution

Certain persons or entities benefit from immunity from execution, which means that they cannot be the subject of enforcement measures or that such measures are subject to specific restrictions.

The main immunities from execution concern :

1. Foreign states Immunity from execution: by virtue of the principle of sovereignty, the property of a foreign State enjoys immunity from execution, except for property assigned to an economic or commercial activity governed by private law. This rule was clarified by Law 2016-1691 of 9 December 2016 on transparency, the fight against corruption and the modernisation of economic life.
2. Diplomatic and consular missions their property enjoys special protection in accordance with the Vienna Conventions on Diplomatic and Consular Relations.
3. Certain international organisations The number of registered offices: depending on the headquarters agreements concluded with France.
4. French public authority assets Property belonging to the public domain is exempt from seizure, as are public funds intended for public service purposes.
5. Certain private property For example, assets declared by law to be exempt from seizure (such as furniture required for daily living, business tools, etc.).

These immunities are not absolute and may be waived in certain circumstances, in particular by express waiver by the beneficiary or by judicial decision.

Frequently asked questions

Does an appeal suspend the enforcement of a civil judgment?

In principle, no. Article 514 of the Code of Civil Procedure lays down the principle that "First instance decisions shall be provisionally enforceable by operation of law unless otherwise provided by law or by the decision rendered.

This means that the appeal itself has no suspensive effect.

However, there are several exceptions to this principle:

1. Provisional enforcement If the judgment has not been provisionally enforced, its enforcement is suspended during the appeal period and, if an appeal is lodged, during the appeal proceedings.
2. Suspension of provisional enforcementEven if the judgment is provisionally enforceable, the first president of the court of appeal may suspend provisional enforcement in the event of an appeal if two conditions are met:
   • Enforcement is likely to lead to manifestly excessive consequences,
   • There are serious grounds for setting aside or reversing the judgment.
3. Special cases Some decisions are never subject to provisional enforcement (such as judgments changing a person's status), while others are always subject to provisional enforcement (such as summary judgments).

It is therefore essential to check, on a case-by-case basis, whether the decision you wish to enforce or are the subject of is enforceable despite the appeal.

Is there a deadline for enforcing a civil judgment?

Yes, compulsory execution is subject to limitation periods beyond which it becomes impossible.

Article L. 111-4 of the Code of Civil Enforcement Procedures sets this limitation period at 10 years for the enforceable titles mentioned in 1° to 3° of article L111-3 (court decisions, foreign deeds, conciliation minutes).

For notarised enforceable deeds, the limitation period that applies depends on the obligation concerned. For example, where the notarised deed records a loan between a professional and a private individual, the 2-year limitation period set out in the Consumer Code applies.

• An act of compulsory execution,
• Recognition by the debtor of the creditor's right,
• A legal claim.

The interruption starts a new period of the same duration as the previous one.

It is therefore crucial for creditors not to remain inactive for too long after obtaining a writ of execution, at the risk of seeing their right to enforcement extinguished by the effect of prescription.

Enforcement is a technical area that often requires the involvement of legal professionals. If you run into difficulties, don't hesitate to consult a lawyer or a judicial commissioner, who will be able to guide you through these complex but essential procedures.