On 6 February 2025, the Second Civil Chamber of the French Supreme Court handed down a ruling on the consequences of an incomplete enforcement order. The Caisse nationale des barreaux français had taken enforcement measures against a lawyer who was a debtor, on the basis of an order by the first president of a court of appeal to enforce a list of contributions. The debtor challenged the validity of the measures on the grounds that the enforcement order was incomplete.
The legal framework of the executory clause
Definition and textual basis
The executory clause represents the order given by the public authorities to the enforcement agents to proceed with compulsory enforcement measures.
Article 502 of the Code of Civil Procedure establishes the principle that "no judgment or deed may be enforced except on presentation of a certified copy, unless the law provides otherwise"..
The wording of this form is set out in Article 1 of Decree no. 47-1047 of 12 June 1947, which requires the words : "Consequently, the French Republic instructs and orders all bailiffs, as required, to enforce the said ruling (or the said judgement, etc.), the public prosecutors and the public prosecutors of the judicial courts to take action, and all commanders and officers of the public force to lend a hand when legally required to do so.
Mandatory formula vs. legal exceptions
The text provides for exceptions with the formula "unless otherwise provided by law".. These exceptions mainly concern decisions that are executory on the original, such as orders on request (article 495, paragraph 2 of the Code of Civil Procedure) or certain summary orders (article 489, paragraph 2).
In a previous ruling dated 20 May 2021, the Cour de cassation had already specified that the order of the first president rendering enforceable the roll of contributions due to the CNBF had to be endorsed with the executory clause, as the former Article L. 723-9 of the Social Security Code did not provide for any exception.
The solution adopted by the Court of Cassation
Incompleteness as a formal defect
The main contribution of the judgment of 6 February 2025 lies in the legal definition of incompleteness. In this case, the order only contained the words "appoints any bailiff from the place of residence of the person concerned to enforce this order".This formula is insufficient to meet the requirements of the 1947 decree.
The Court of Cassation qualified this incompleteness as a formal irregularity, thus subjecting it to the system of nullities for formal defects provided for by the French Code of Civil Procedure. Article 114 of the Code of Civil Procedure.
The need to demonstrate a grievance
The High Court confirms that this irregularity can only be sanctioned by nullity on proof of a grievance, which the debtor had not invoked in this case.
This solution is in line with established case law. In a ruling dated 11 February 2010, the court had already stated that, in the absence of any challenge to the enforceability of the instrument, the omission of the enforcement form should be analysed as a nullity on the grounds of a formal defect.
The executory clause, although a substantial formality, does not dispense with the need to demonstrate a grievance. When the enforceability of the decision is indisputable, it is difficult to show that an incomplete form causes prejudice.
Practical consequences
For pursuing creditors
This decision is favourable for creditors. An irregularity affecting the enforcement formula does not automatically call into question the enforcement measures.
However, creditors must :
- Check that the executory clause is present and in order,
- Make sure that the shipment includes the complete formula,
- If in doubt, request a new shipment.
For seized debtors
Debtors have limited means of defence. To effectively challenge an enforcement measure based on an incomplete enforcement order, they will have to :
- Invoking this plea in limine litis,
- Demonstrate concrete harm,
- Possibly challenge the enforceability of the order, which could be described as a defence on the merits.
The question remains open as to whether a challenge relating to an incomplete formule exécutoire can be classified as a defence on the merits, by extension of the case law of 5 September 2019.
For enforcement professionals
Judicial agents are the first to be affected. They may be held liable if they assist in the enforcement of an irregular title.
In practice:
- They must check that the executory clause is present and correct,
- In the event of incompleteness, they may refuse to proceed with performance,
- If they nevertheless go ahead with performance, they may be liable.
Court registrars must also ensure that the enforcement order appears in full on the writs they issue.
The judgment of 6 February 2025 confirms that the formalism of compulsory enforcement must not lead to systematic nullities that have no concrete justification, thereby preserving the balance between the effectiveness of enforcement procedures and the protection of debtors' rights.
Sources
- Civ. 2e, 6 Feb 2025, F-B, no. 22-18.527
- Civ. 2e, 20 May 2021, no. 19-22.553, published in the Bulletin
- Civ. 2e, 11 Feb 2010, no. 09-65.404
- Civ. 2e, 5 Sept. 2019, no. 17-28.471
- Civ. 2e, 28 June 2006, no. 04-17.514
- Civ. 1st, 28 Sept. 2016, no. 14-29.776
- Civ. 2e, 1 July 1992, no. 91-11.434
- Castanier K., "The incompleteness of the executory clause constitutes an irregularity due to a formal defect".Dalloz actualité, 12 Feb. 2025
- Chainais C., Mayer L., Guinchard S. and Ferrand F., Procédure civile, 37th ed, Dalloz, 2024
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