Special astreinte regimes: expulsion, criminal and administrative matters

The astreinte is a fundamental legal tool for forcing a debtor to fulfil his obligations. However, its application varies from one area of law to another. Certain derogatory regimes significantly modify its operation, liquidation and effects. Let us examine the particularities of the astreinte in expulsion, criminal law, administrative law and international disputes.

1. Astreinte in eviction proceedings: a protective regime

A special regime under the Act of 21 July 1949

Law no. 49-972 of 21 July 1949, now codified in articles L.421-1 and L.421-2 of the Code of Civil Enforcement Procedures, introduced a specific system for penalty payments in eviction cases. This regime considerably limits the effectiveness of astreintes compared with ordinary law.

"Penalties set to force the occupier of a premises to vacate the premises are always provisional in nature". (art. L.421-1 CPCE).

This text is rooted in the historical context of the post-war housing crisis. However, its continued existence today seems anachronistic and unbalances the rights of landlords.

A strictly defined field of application

Case law has sought to limit the scope of this derogation. It does not apply to :

• Occupation of bare land (Com. 23 déc. 1964, Bull. civ. III, n°589)
• Rural leases (Soc. 28 déc. 1951, D. 1952. 665)
• Occupancy following an auction (Civ. 2e, 10 Feb. 2000, no. 98-13.354)
• Fraudulent entry into the premises (Civ. 2e, 10 Feb. 1993, no. 91-13.627)

On the other hand, the text applies to commercial and professional premises, which considerably extends its scope.

Specificities of liquidation unfavourable to creditors

This scheme has three major features:

1. A penalty payment is always provisional, never definitive
2. Liquidation only takes place after the eviction order has been enforced, which removes its comminatory nature.
3. The amount cannot exceed compensation for the loss actually suffered

This last characteristic transforms the astreinte into a simple indemnity, whereas ordinary law states that "the astreinte is independent of damages" (art. L.131-2 CPCE).

However, the owner may combine this penalty with an occupancy indemnity (Civ. 2e, 6 Dec. 1989, Bull. civ. II, no. 215), which partially mitigates this limitation.

2. Penalty payments ordered by criminal courts

Legal basis for periodic penalty payments

Unlike civil law, there is no general astreinte regime in criminal law. Articles 132-66 to 132-70 of the Penal Code provide a framework for astreinte only in the context of deferral of sentencing.

Article 132-67 of the Criminal Code states: "the court may impose a penalty on the injunction where this is provided for by law or regulation"..

The criminal courts may also impose periodic penalty payments for decisions relating to civil interests, which are governed by the ordinary law of articles L.131-1 et seq. of the CPCE.

Focus on standby duty for town planning

Penal fines have a particular application in planning law. Article L.480-7 of the Town Planning Code states:

"The court shall set a deadline for the beneficiary of the unlawful works or unlawful use of the land to comply with the demolition, compliance or reallocation order; it may impose a penalty of up to €500 for each day's delay.

These penalty payments constitute "measures of a real nature intended to put an end to an unlawful situation, and not criminal sanctions" (Crim. 6 Nov. 2012, no. 12-82.449).

Their specific features:

• They are ordered and paid exclusively by the criminal courts.
• The amount may be increased above the legal maximum if the offender fails to comply within one year.
• They are paid by the State to the municipalities concerned

The Court of Cassation maintains its strict case law, refusing to waive the penalty even if planning permission is subsequently obtained (Crim. 30 May 2006, no. 05-87.694).

3. Administrative on-call duty: a late arrival

A difficult emergence in administrative litigation

The administrative courts have long rejected the use of astreinte. The Conseil d'Etat held that an administrative judge could not "order, on pain of a penalty payment", the Administration to adopt a specific course of action (CE 27 Jan 1933, Le Loir, Lebon 136).

This rejection was based on the principle of the separation of powers: the judge could not act as administrator without encroaching on the executive.

It was only with Act no. 80-539 of 16 July 1980, and then above all Act no. 95-125 of 8 February 1995, that the astreinte (penalty payment) became an integral part of administrative litigation, now codified in articles L.911-1 et seq. of the Code of Administrative Justice.

The procedure for issuing rulings and the competent courts

Administrative penalty payments can be imposed in two ways:

1. Immediately in the decision on the merits (art. L.911-3 CJA)
2. A posteriori, in the event of non-enforcement of a decision (art. L.911-4 and L.911-5 CJA)

All administrative courts (administrative tribunals, administrative courts of appeal, Conseil d'État) can impose penalty payments, including in summary proceedings.

Article L.911-4 of the CJA states that the court that handed down the decision has jurisdiction to impose the astreinte a posteriori. A pre-litigation procedure is provided for to try to obtain enforcement without resorting to an astreinte.

Significant features

The administrative on-call duty has several specific features:

1. It may only be directed at legal persons governed by public law or private bodies entrusted with a public service.
2. It may be ordered ex officio by the judge
3. The judge can directly choose a definitive astreinte without going through a provisional astreinte
4. Part of the penalty payment may not be paid to the claimant but allocated to the State budget (art. L.911-8 CJA).

This last feature prevents unjustified enrichment of the claimant. The Conseil d'État recently specified that this rule does not apply when the State is itself a debtor (CE, ass., 10 July 2020, no. 428409).

4. Astreinte in private international law

Power of the French judge in international disputes

Can a French court impose a penalty payment in an international dispute? The Cour de cassation answers in the affirmative.

In the Worms judgment (Civ. 1re, 19 Nov. 2002, no. 00-22.334), it approved the lower courts' decision to order a French bank, subject to a fine, to desist from proceedings brought in Spain.

As the astreinte is a personal measure that is aimed directly at the individual and not at his or her property, it is not considered to be an infringement of foreign sovereignty.

Liquidation and recognition of foreign penalty payments

The French court may impose an astreinte on a foreign decision that has been granted exequatur. However, it cannot liquidate an astreinte ordered by a foreign court.

The Brussels Ia Regulation specifies : "Foreign judgments handed down in a Member State ordering a periodic penalty payment shall be enforceable in the Member State addressed only if the amount of the penalty payment has been finally determined by the court of origin". (art. 55).

The CJEU has confirmed this approach by specifying that a periodic penalty payment follows the same enforcement regime as the decision it secures (CJEU 9 Sept. 2015, Bohez v Wiertz, Case C-4/14).

As regards liquidation, the Cour de cassation states that "the court with jurisdiction to liquidate an astreinte when the debtor lives abroad is that of the place where the injunction is enforced" (Civ. 2e, 15 Jan. 2009, no. 07-20.955).

The diversity of special astreinte regimes reflects the tension between the effectiveness of the measure and the protection of debtors. In some areas, such as expulsion, the astreinte loses much of its comminatory force. On the other hand, in administrative and international matters, its application has gradually been extended.

To secure your litigation strategy, it is essential to analyse the applicable regime beforehand. The firm can help you identify the astreinte system best suited to your situation and maximise your chances of obtaining effective enforcement of court rulings affecting you.

Sources

• Code of civil enforcement procedures, articles L.131-1 to L.131-4 and L.421-1 to L.421-2
• Criminal Code, articles 132-66 to 132-70
• Code of administrative justice, articles L.911-1 to L.911-8
• Town Planning Code, article L.480-7
• Law no. 49-972 of 21 July 1949 on penalty payments in eviction cases
• Law no. 80-539 of 16 July 1980 on penalty payments in administrative matters
• Law no. 95-125 of 8 February 1995 on the organisation of the courts
• Civ. 2e, 10 February 1993, no. 91-13.627
• Civ. 2e, 10 February 2000, no. 98-13.354
• Civ. 1re, 19 November 2002, no. 00-22.334 (Worms ruling)
• Civ. 2e, 15 January 2009, no. 07-20.955
• Crim. 6 November 2012, no. 12-82.449
• CE, ass., 10 July 2020, n°428409, Association Les Amis de la Terre
• CJEU, 9 September 2015, Bohez v Wiertz, Case C-4/14