The JEX and precautionary measures: how to protect your claims

When your debtor is in danger of becoming insolvent, every day counts. Precautionary measures allow you to freeze your debtor's assets or receivables to guarantee payment of your debt. The enforcement judge (JEX) plays a central role in this preventive system.

Authorisation of precautionary measures

Prerequisites

Article L. 511-1 of the French Code of Civil Enforcement Procedures (CPCE) requires two conditions to be met in order to obtain a protective order:

1. A claim founded in principle
2. A threat to the recovery of this debt

A claim is "founded in principle" when its existence appears likely, although it is not yet certain. The JEX examines this appearance of right. It does not require definitive proof, but serious evidence.

As for the threat, this is assessed on the basis of the debtor's financial situation or behaviour. An imminent move, the hasty sale of assets or the accumulation of debts are relevant indicators.

The JEX refuses authorisation if it considers that the conditions are not met. In a ruling dated 19 December 2002, the Court of Cassation confirmed that the JEX must examine the legal merits in order to assess these conditions (Civ. 2e, 19 Dec. 2002, no. 01-03.719).

Application procedure

The request is made by application to the JEX. This request must specify :

• The nature of the claim and its approximate amount
• The reasons for its existence
• Circumstances threatening recovery
• The assets to be seized or the security to be taken

This non-adversarial procedure allows you to act quickly, without alerting the debtor.

Disputes relating to precautionary measures

Jurisdiction of the JEX

The JEX hears disputes relating to the implementation of precautionary measures (article L. 213-6 of the Code de l'organisation judiciaire). Its jurisdiction covers :

• The formal regularity of the measure
• Proportionality of seizures
• Scope of seized assets
• Performance incidents

In a ruling dated 31 January 2013 (no. 11-26.992), the Cour de cassation specified that the JEX may hear cases involving difficulties relating to the enforcement order arising from a protective measure.

Means of dispute

The debtor may contest :

• The absence of the required conditions
• The excessive amount of the seizure
• The unseizable nature of the assets in question
• Procedural irregularities

The Cour de cassation has extended the powers of the JEX by allowing it to examine the disproportionate nature of a guarantor's undertaking during a protective seizure (Civ. 2e, 14 Jan. 2020, no. 19-18.844).

Jurisdiction shared with the President of the Commercial Court

Distribution criteria

Article L. 511-3 of the CPCE provides for concurrent jurisdiction of the President of the Commercial Court, subject to three cumulative conditions:

1. The application must be submitted before any trial
2. It aims to preserve a claim falling within the jurisdiction of the commercial court
3. The debtor is a trader

A trader sued for a non-commercial debt is still subject to the jurisdiction of the JEX.

Choice strategy

The creditor can choose between these two jurisdictions. Each has its advantages:

• The president of the commercial court may be more familiar with commercial issues
• The JEX has technical expertise in seizures

This option offers strategic flexibility. However, as soon as proceedings are commenced on the merits, the JEX has sole jurisdiction (TGI Chambéry, JEX, 15 June 1993).

Release of precautionary measures

Conditions

The JEX can order the release when :

• The conditions were not right
• The debtor deposits a sufficient sum
• The measure has become unnecessary or abusive

The application is made under the ordinary procedure before the JEX, by writ of summons.

Effects

Article L. 512-1 of the CPCE states that "when the release has been ordered by the judge, the creditor may be ordered to repair the damage caused by the precautionary measure".

Case law has evolved with regard to this liability. Initially, some chambers required proof of fault. Today, the Second Civil Chamber considers that such proof is not necessary (Civ. 2e, 29 Jan 2004, no. 01-17.161).

The Court of Cassation confirmed this position in a ruling dated 2 March 2023 (no. 20-21.303), specifying that an application for a stay of execution of a JEX ruling ordering the release of a protective attachment extends the effects of that attachment and suspends the creditor's order to pay damages.

How to secure your request for precautionary measures

To maximise your chances of obtaining protective measures :

1. Gather tangible proof of the existence of your claim (contracts, invoices, letters)
2. Accurately document the threats to collections
3. Clearly identify the assets to be seized and their approximate value
4. Check the proportionality between the amount of your claim and the scope of the measure requested
5. Specify the urgency justifying the use of this procedure

Precautionary measures are a powerful but technical tool. A procedural error can lead to the measure being lifted and to possible damages. The expertise of a specialist lawyer can determine the success of your approach.

The firm is at your disposal to assess your situation and help you implement these emergency procedures.

Sources

• Code of civil enforcement procedures, articles L. 511-1 to L. 512-1 and R. 511-1 to R. 512-3
• Code of Judicial Organisation, article L. 213-6
• Civ. 2e, 19 Dec. 2002, no. 01-03.719, RTD civ. 2003. 357, note by R. Perrot
• Civ. 2e, Jan. 29, 2004, no. 01-17.161, D. 2004. 926
• Civ. 2e, 31 Jan. 2013, no. 11-26.992, D. 2013. 373
• Civ. 2e, 14 Jan. 2020, no. 19-18.844
• Civ. 2e, 2 March 2023, no. 20-21.303
• TGI Chambéry, JEX, 15 June 1993, BICC 1993, n° 1171