Provisional enforcement is formidable for the convicted debtor. It neutralises the suspensive effect of the appeal or opposition. The creditor can therefore obtain payment even though the decision is not final.
But there are safeguards. The law offers two protective mechanisms for the debtor: the complete cessation of provisional enforcement or its adjustment. These mechanisms can limit the risks of premature payment that would prove unjustified after reform.
Decree no. 2019-1333 of 11 December 2019 amended these mechanisms. Since 1 January 2020, a new system has coexisted with the old one, applicable to proceedings brought before that date.
The courts with jurisdiction to order provisional enforcement
Exclusive jurisdiction of the First President
In both systems, the first president of the court of appeal has exclusive jurisdiction to order provisional enforcement.
Article 514-3 of the Code of Civil Procedure (new regime) and article 524 (old regime) enshrine this jurisdiction. Only the First President may interrupt the forced execution resulting from provisional execution.
The enforcement judge, despite his title, is radically incompetent. The Court of Cassation confirmed this in a judgment of 14 September 2006 (Civ. 2e, no. 05-21.300, Bull. civ. II, no. 223).
The first president rules in summary proceedings. Since decree no. 2014-1338 of 6 November 2014, his decision is not subject to appeal to the Supreme Court.
Jurisdiction ratione temporis
The First President has jurisdiction from the time the appeal is lodged until the Court of Appeal relinquishes jurisdiction. However, he loses this jurisdiction as soon as a Conseiller de la Mise en Condition is appointed.
To refer a case to the First President, an appeal must exist. However, its admissibility is irrelevant. The Court of Cassation has ruled that provisional execution can be halted as long as "the Court of Appeal has not declared the appeal inadmissible" (Civ. 2e, 18 Feb 2016, no. 14-20.199).
Means of arrest under the old and new systems
Under the old system (cases filed before 2020)
The old regime made a clear distinction between optional provisional enforcement and automatic provisional enforcement.
For optional provisional enforcement, a stay is possible in two cases:
- If it is prohibited by law
- If it is likely to result in manifestly excessive consequences
For provisional enforcement by operation of law, article 524 paragraph 6 (from the decree of 20 August 2004) provides for two cumulative conditions:
- A clear breach of the adversarial principle or of article 12 of the CPC
- A risk of manifestly excessive consequences
The Court of Cassation has strictly interpreted the manifest violation of Article 12. It has ruled that "a judge's error in applying or interpreting a rule of law does not constitute a manifest breach" (Soc. 18 Dec. 2007, no. 06-44.548).
Under the new system (cases filed since 2020)
The new system unifies the conditions for stopping. Articles 514-3 and 517-1 now impose two cumulative conditions:
- The existence of a serious ground for annulment or reversal
- A risk of manifestly excessive consequences
The assessment of manifestly excessive consequences remains economic. In the case of financial penalties, this risk is assessed in the light of the debtor's ability to pay or the creditor's ability to repay.
There are still derogations for the press (article 64 of the law of 29 July 1881) and for companies in difficulty (article R. 661-1 of the Commercial Code).
Adjustment: an alternative to halting provisional enforcement
When a total halt is not justified, the layout offers an intermediate solution. It limits risks for the debtor without depriving the creditor of his title.
The new regime simplifies the rules on planning by unifying them for both automatic and optional provisional enforcement. Under the old system, there were restrictions on how provisional enforcement could be arranged.
The Court of Cassation has ruled that the power to make adjustments is left to the discretion of the first president (Civ. 2e, 6 Dec. 2007, no. 06-19.134). This solution is open to criticism because it ignores the letter of Article 524, which normally requires that the consequences be manifestly excessive.
Development measures available
Creation of a guarantee
The court may make provisional enforcement subject to the provision of security by the creditor. This guarantee may be personal (surety) or real.
Article 517 of the Code of Civil Procedure specifies that this guarantee must be "sufficient to cover all restitution and reparation". It protects the debtor if the judgment is overturned.
The court determines the nature, extent and terms of the guarantee. If a deposit is ordered, the funds are generally deposited with the Caisse des dépôts et consignations.
Consignment
Article 521 of the Code of Civil Procedure allows the debtor to avoid enforcement by depositing the amount of the judgment. The debtor must hand over "sufficient cash or securities to guarantee the amount of the sentence in principal, interest and costs".
This measure is not available for orders for the payment of "maintenance, compensation or provisions".
Consignment entails "special assignment and preferential right" within the meaning of article 2350 of the French Civil Code.
There is a variation: the adapted deposit. For a lump sum awarded in compensation for personal injury, the judge can appoint a receiver who will periodically pay the victim a set amount.
Guarantee substitution
Article 522 of the Code of Civil Procedure allows a primary guarantee to be replaced by an equivalent guarantee. This is possible at any time.
Unlike other mechanisms, no new facts are required since the initial guarantee. Substitution mainly concerns guarantees provided by the creditor as a condition of provisional enforcement.
For deposits made by the debtor, substitution is more restrictive. The substitute guarantee must be genuinely equivalent to the deposit, which is rarely accepted.
In a decision dated 31 March 1983, the Rennes Court of Appeal refused to consider a bank guarantee as equivalent to a deposit.
The expertise of a lawyer is essential to navigate these complex mechanisms. Inappropriate legal advice can result in the loss of these protections.
The firm remains available to examine your situation and identify the most appropriate optimal strategy. A preventive examination of these issues, even before any conviction, can prove decisive.
Sources
- Code of civil procedure: articles 514 to 526 (old system) and articles 514-1 to 517-4 (new system)
- Decree no. 2019-1333 of 11 December 2019 reforming civil procedure
- Civ. 2e, 14 September 2006, no. 05-21.300, Bull. civ. II, no. 223
- Civ. 2e, 18 February 2016, no. 14-20.199
- Soc. 18 December 2007, no. 06-44.548, Bull. civ. V, no. 213
- Civ. 2e, 6 December 2007, no. 06-19.134, Bull. civ. II, no. 262
- Civil Code: article 2350
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