Even if a foreign judgment seems perfectly official and final in its country of origin, it does not automatically receive a "visa" to take full effect in France. Whether you are seeking to enforce a foreign judgment (via theexequaturas discussed in our previous article) or whether you are concerned by a judgment recognised by operation of law (such as a foreign divorce), the French judge always exercises an essential control before granting it full validity on our territory. He acts as a guardian, ensuring that the decision complies with fundamental standards. So what are these imperative conditions, these 'filters' that the French judge systematically applies? Understanding these requirements is important for anticipating the chances of success or potential difficulties associated with the recognition of a foreign judgment in France. We will detail the four main points of control here: the jurisdiction of the foreign court, the legality of the proceedings conducted abroad, the compliance of the decision with French public policy and the absence of fraud.
1. The jurisdiction of the foreign court: was the foreign court legitimate to judge?
The first question for the French court is whether the foreign court that issued the decision was properly placed to do so. Note that this does not mean checking whether the specific court (for example, the Brussels Court of First Instance) had jurisdiction under Belgian domestic rules. The French judge examines what is known as the indirect competence It seeks to know whether the dispute had a sufficient link with the country referred to the judge.
- The "genuine link" criterion : In order for indirect jurisdiction to be recognised, it must be demonstrated that there existed a a significant link, a clear connection between the business and the foreign country. This link can take various forms. For example:
- The defendant was domiciled in that country at the time proceedings were commenced.
- The parties shared the nationality of that country (even if they lived elsewhere).
- The contract at the heart of the dispute was to be performed in that country.
- The damage (in the case of civil liability) was suffered in that country. The assessment is made on a case-by-case basis, but the idea is to avoid recognising judgements handed down by courts that clearly had no serious connection with the case.
- Beware of exclusive French powers: There are certain matters over which the French courts reserve exclusive jurisdiction. If the foreign judgment relates to one of these matters, it will be systematically blocked in France on the grounds that the foreign court lacks jurisdiction. This is the case in particular for :
- Disputes concerning rights in rem in immovable property situated in France (sale, ownership, mortgage, etc.).
- Enforcement measures that must be taken in France.
- Certain specific actions, such as the validity of a French patent.
- No fraudulent choice of court : The French judge also checks that the choice of foreign court has not been fraudulent. It is not a question of prohibiting a party from choosing the court that seems most favourable from among several legitimate options (sometimes referred to as "forum shopping"). The fraud here is aimed at a handling For example, a party who artificially and temporarily moves to a country solely to bring a case before its courts, even though the case has no natural connection with that country, with the aim of evading the judge with normal jurisdiction.
2. Due process: did the trial abroad respect fundamental rights?
The French judge not only verifies the jurisdiction of the foreign court, but also examines the way in which the proceedings were conducted. The aim is to ensure that the fundamental principles of a fair trial have been respected. This review is not based on the detailed procedural rules of the foreign country, but on the French concept of "fair trial". international procedural public policywhich essentially protects rights of defence.
A number of points are being carefully examined:
- Informing the defendant : Has the person against whom proceedings have been taken abroad been properly informed of the existence of the proceedings? Did they receive a summons (or equivalent document) clearly indicating what they were accused of? Did they have sufficient realistic time to prepare their defence? A judgment against a person who has never been informed of the proceedings or who has not had the material time to react will generally be refused in France.
- Respect for the adversarial process : Did each party have the opportunity to present its arguments, to learn about its opponent's arguments and to respond to them? Communication of documents and submissions is essential. A procedure in which a party has not been able to make its voice heard or discuss the evidence presented against it is contrary to our principles.
- Reasons for the decision : The foreign judgment must explain, even briefly, the reasons that led the court to reach its decision. A decision that is completely devoid of reasons (or whose reasons are not accessible) is problematic because it does not make it possible to understand the reasoning of the foreign court and makes it difficult for the French court to review the other conditions. In some cases, supporting documents may serve as a substitute for missing reasons.
- The judge's impartiality : The foreign court must have offered guarantees of independence and impartiality. A judgement handed down by a judge who is proven to be biased (for example, because of personal interests in the case) will not be recognised in France.
These requirements are designed to ensure that a foreign decision is not the result of a manifestly unfair procedure. Respect for the right to a fair trial, as understood in France and in particular under the influence of the European Convention on Human Rights, is essential here.
3. Compliance with French international public policy: does the decision offend our fundamental values?
This is undoubtedly one of the most important conditions, but also one of the trickiest to define. The French judge checks whether the content of the foreign judgment itself, i.e. the solution it provides to the dispute, is not contrary to French international public policy.
What is this "international public policy"? It does not include all mandatory French laws, but a hard core of principles and values considered essential and non-negotiable in the French legal system. We could compare it to the fundamental rules of a house: certain rules of life are so important that we cannot accept that they be violated, even by a decision coming from outside.
The inspection covers concrete result of the foreign decision in the given situation. Here are some examples of foreign decisions that could be deemed contrary to French international public policy:
- A divorce or child custody judgment based on clear discrimination on grounds of sex or religion.
- A decision that would totally disregard the best interests of the child.
- Recognition of a status or contract that is radically incompatible with our fundamental social or moral concepts (for example, validation of a contract relating to an activity that is manifestly illegal in France).
- An award of damages in an amount so exorbitant and unrelated to the actual loss that it would become punitive and disproportionate (even if the principle of punitive damages is not itself totally excluded if they remain measured).
One nuance should be noted: the assessment of public policy may vary depending on the link between the situation and France. If the case is very remote from France (for example, a status acquired abroad between foreigners a long time ago), the French judge may be a little more tolerant ("attenuated effect" of public policy). On the other hand, if the situation has close links with France (for example, people living in France for a long time), the control will be stricter ("ordre public de proximité"). But in all cases, the most fundamental principles cannot be ignored.
4. Absence of fraud
Lastly, the French court ensures that the foreign judgment is not the result of a evasion of the law. Fraud against the law, here, refers to a intentional manipulation to avoid the application of the law that would normally have governed the situation.
The idea is to prevent a person from artificially changing circumstances (for example, by changing nationality or establishing a fictitious residence in another country) in order to single purpose to have a more favourable law applied to it or to obtain a result that it would not have been able to obtain under the law normally applicable.
For example, if French spouses temporarily and artificially move to a country solely to obtain a quicker or more advantageous divorce under local law, even though they actually live in France, the divorce decree obtained could be considered fraudulent and refused recognition in France. The aim is not to prevent people from benefiting from a more favourable foreign law if it is legitimately applicable, but to penalise manoeuvres designed to circumvent the law that should have applied.
A condition that is (almost) no longer verified: the law applied by the foreign court
For a long time, the French court systematically checked whether the foreign court had applied the law that the French conflict of laws rules designated as competent. This was an additional and complex condition.
However, an important development took place with the ruling Cornelissen by the Cour de cassation in 2007. Since then, this systematic review of the law as applied is no longer required as an autonomous condition of lawfulness. In principle, therefore, the French court no longer has to check whether the foreign court has applied the 'correct' law according to French criteria. This simplifies the procedure.
However, the nuance is important: if the application by the foreign court of a law different from that designated by the French rules leads to a result which is, in fact, the same as the French law, the foreign court must apply the French law, manifestly contrary to French international public policy (see condition 3), then the judgment can still be set aside, but on the basis of public policy, and no longer on the basis of the "bad law" applied. Public policy therefore remains the ultimate safety net.
These conditions of jurisdiction, procedure, compliance with public policy and absence of fraud form the core of the control exercised by the French courts. They are designed to ensure a balance between the need to respect decisions handed down abroad and the protection of the fundamental principles of the French legal system. Assessing whether a foreign judgment meets these conditions can be complex and requires in-depth legal analysis. If you are concerned by a foreign judgment, do not hesitate to contact our firm for a personalised assessment of its chances of recognition in France.
Sources
- General principles of French private international law
- Key case law (including rulings in Munzer, Cornelissen, Simitch)
- European Convention on Human Rights (relevant principles, in particular Art. 6 on fair trial)
- Civil Code
- Code of civil procedure
- European Union regulations and applicable international conventions.
EN 
FR