L'order for payment is a fundamental tool for creditors wishing to recover their debts quickly. This procedure has recently undergone substantial changes designed to modernise it and make it more efficient. Let's take a look at these changes, which are reshaping the debt collection landscape in France.
The 2022 reform: digital transparency
Decree no. 2022-245 of 25 February 2022 has overhauled the injunction to pay procedure by strengthening the debtor's rights. The main change is that the bailiff must now make the supporting documents available to the debtor electronically via the www.mespieces.fr platform at the time of service.
The new article 1411 of the Code of Civil Procedure makes electronic communication of documents mandatory. The legislator is pursuing a twofold objective:
- Ensuring that debtors are better informed
- Rebalancing a procedure that was initially very favourable to the creditor
This reform has changed things. Before, debtors had to go to the court registry to consult the documents. Now they can immediately analyse the basis of the claim.
Some creditors take a dim view of this development. Systematic communication of documents could lead to more objections. I note, however, that this increased transparency may also encourage amicable settlements when the debt is clearly established.
The 2019 reform: centralisation and dematerialisation
Law no. 2019-222 of 23 March 2019 on justice programming for 2018-2022 initiated a far-reaching transformation. It introduced a national dematerialised procedure for payment orders in articles L.211-17 and L.211-18 of the Code of Judicial Organisation.
This reform is based on three major themes:
- La creation of the judicial courtmerger of magistrates' and high courts
- Unification of referral methods (application and summons only)
- The specialisation of a court designated by decree to deal with applications for injunctions to pay
Applications for payment orders are now made by electronic means, except in the case of natural persons not acting in a professional capacity and not represented by an agent.
Decree no. 2019-1333 of 11 December 2019 supplements these provisions by simplifying the pleas of lack of jurisdiction and extending compulsory representation by a lawyer.
This pooling of powers is intended to standardise practices and speed up the processing of cases. In my experience, however, this centralisation can distance the justice system from the litigant, particularly for private individuals who are unfamiliar with paperless procedures.
Notable developments in case law
The ten-year limitation period for an order for payment
The Cour de cassation clarified an essential point in its ruling of 8 June 2023 (no. 21-18.615): the performance of a order for payment is subject to the ten-year limitation period and not to the limitation period for the claim that it establishes, provided that it has been served personally and has not been opposed.
This decision is crucial for creditors. An order for payment can "save" a claim that would otherwise be time-barred.
Res judicata reinforced
In a judgment of 1 February 2018 (no. 17-10.849), the Second Civil Chamber of the Court of Cassation clarified that the res judicata effect attached to an order for payment precludes claims relating to the termination of agreements between the parties for non-performance.
The Court points out that"it was up to the plaintiff to lodge a regular objection to this order in order to present all of its defences on this occasion"..
The consequences of opposition
Several recent rulings have clarified effects of the objection :
- An order for payment is only a judicial decision if there is no opposition (Civ. 2e, 23 May 2024, no. 21-25.988)
- Opposition to an order to pay, even if irregular, interrupts the opposition period (Civ. 2e, 18 January 2024, no. 21-23.033)
The Court of Cassation has also confirmed that a judgment handed down on opposition replaces an injunction to pay (Civ. 2e, 2 July 2020, no. 19-16.100).
The role of the courts in European matters
The Court of Justice of the European Union has extended the judge's role with regard to unfair terms in the European order for payment procedure (CJEU, 19 December 2019, aff. C-453/18 and C-494/18).
The court may ask the creditor for additional information on the contractual clauses relied on in support of the claim. National provisions declaring such requests for information inadmissible would be contrary to European law.
Prospects for the development of the order for payment procedure
The trend is clear: payment orders are moving towards greater dematerialisation and possible partial diversion from the courts.
Several avenues are being explored:
- Automating the processing of injunction requests
- Strengthening European harmonisation
- The transfer of certain powers to chief clerks
Article 8 of Regulation no. 1896/2006 of 12 December 2006 already provides that the examination of the application for a European order for payment ". does not necessarily have to be carried out by a judge "and may be subject to " an automated procedure" .
French law is likely to follow this path. The question that then arises is the balance between effectiveness and protection of the debtor's rights.
Unpaid debts account for more than a quarter of the civil activity of the courts. Smoother management of payment orders could relieve congestion in the courts, but safeguards are needed.
In the event of complex debt collection or a serious dispute, the services of a lawyer are essential for navigating these constantly evolving procedures. Our firm can assist you in analysing your situation and determining the best strategy for the collecting your debts.
Sources
- Decree no. 2022-245 of 25 February 2022 promoting recourse to mediation
- Law no. 2019-222 of 23 March 2019 on programming 2018-2022 and reform for the justice system
- Decree no. 2019-1333 of 11 December 2019 reforming civil procedure
- Court of Cassation, 2nd Civil Division, 8 June 2023, no. 21-18.615
- Court of Cassation, 2nd Civil Division, 18 January 2024, no. 21-23.033
- Court of Cassation, 2nd Civil Chamber, 2 July 2020, no. 19-16.100
- Court of Cassation, 2nd Civil Division, 23 May 2024, no. 21-25.988
- CJEU, 19 December 2019, cases C-453/18 and C-494/18
- Articles L.211-17 and L.211-18 of the Code of Judicial Organisation
- Article 1411 of the Code of Civil Procedure
- Regulation n°1896/2006 of 12 December 2006 creating a European order for payment procedure
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