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In a legal environment where procedural deadlines are getting longer, provisional enforcement is a key tool for litigants. This option allows creditors to obtain satisfaction without waiting for the final outcome of a dispute.
What is provisional execution?
Provisional execution is defined as "the right granted to the successful party - or creditor - to pursue, at his or her own risk, the immediate execution of the judicial decision to which it is attached, despite the suspensive effect attached to the time limit for appeal or its exercise" (article 514 of the Code of Civil Procedure).
In practice, it neutralises the suspensive effect normally granted to ordinary means of appeal (appeal and opposition). Without this option, the lodging of an appeal would block all enforcement until the final decision.
The very existence of this option meets two major objectives:
- protect the interests of the successful creditor
- reduce dilatory appeals aimed solely at delaying the enforcement of a decision
The distinction with final execution
Don't confuse provisional enforcement with final enforcement. This distinction is fundamental.
Final enforcement takes place when the decision has become res judicata, i.e. when there is no longer an immediate right of appeal or when the time limits for appeals have expired (article 500 of the Code of Civil Procedure).
On the other hand, provisional enforcement concerns a decision that may still be challenged by an ordinary appeal. It is therefore "at the creditor's risk as stated in article L.111-10 of the French Code of Civil Enforcement Procedures.
This difference has major consequences. In the event of reversal or withdrawal of the decision initially enforced, the creditor must:
- return what it has obtained
- compensate the debtor for all losses suffered
As stated by the Cour de cassation in a ruling dated 18 November 1999, this liability applies without the creditor having to prove any fault.
Historical development: towards a generalisation of provisional enforcement
Provisional enforcement has evolved considerably over the course of the reforms. Initially conceived as an exception, it has become almost the rule.
Roman law allowed provisional execution only in very limited cases. Old French law oscillated between openness and restriction, with a restrictive tendency in the Ordinance of 1667.
Several successive reforms have shaped the current system:
- the law of 23 May 1942 introduced a more flexible system
- the decree of 17 December 1973 broadened the judge's powers by allowing him to order provisional enforcement whenever he deemed it "necessary".
- the decree of 5 December 1975 reinforced this trend
- the decree of 20 August 2004 finally made it possible to stop provisional enforcement by operation of law
Reversal of the principle in 2019
The most significant reform is that introduced by Decree no. 2019-1333 of 11 December 2019. This text reversed the historic principle of the suspensive effect of appeals.
Under the new version of article 514 of the Code of Civil Procedure, "first instance decisions are provisionally enforceable by law unless otherwise provided by law or decision".
This reversal, applicable to proceedings commenced from 1 January 2020, marks the culmination of a long evolution. Even before this reform, Professor Hoonakker spoke of the "chimerical nature of the suspensive effect of ordinary appeal procedures".
However, there are still exceptions in certain areas:
- social matters (Article R.1454-28 of the French Labour Code)
- in family matters (article 1074-1 of the Code of Civil Procedure)
- for certain decisions affecting the status of individuals
This development raises a number of practical questions: should we systematically request thestay of provisional execution in the event of an appeal? How can the debtor's rights be guaranteed?
If your case raises issues relating to provisional enforcement, an in-depth legal analysis is required. The rules differ depending on the date on which the proceedings were brought, the nature of the decision and the particularities of each case.
Precise legal advice can prove decisive, particularly in determining the conditions under which provisional enforcement can be halted or adjusted. Do not hesitate to contact our office for a personalised consultation.
Sources
- Code of Civil Procedure, articles 500, 514 to 524-1
- Code of civil enforcement procedures, article L.111-10
- Decree no. 2019-1333 of 11 December 2019 reforming civil procedure
- HOONAKKER Philippe, "L'effet suspensif des voies de recours dans le nouveau code de procédure civile: une chimère? Contribution à l'étude de l'exécution provisoire", thesis, Strasbourg, 1988.
- Cass. 2nd civ. 18 November 1999, no. 97-12.709, Bull. civ. II, no. 170
- PERROT Roger, "Institutions judiciaires", 18th ed. 2020, Précis Domat
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