Enforcement procedures involve a triangle of players: the creditor who claims what is owed, the debtor who must perform, and third parties who hold information or assets belonging to the debtor. Although often overlooked in legal analysis, these third parties play a decisive role.
Their cooperation can speed up the recovery of a debt. Their resistance can block it. The law therefore imposes various obligations on them, sometimes subject to severe penalties.
The general obligation to provide information
Significant legislative changes
The debtor information search system has undergone a major transformation.
The law of 9 July 1991 gave the public prosecutor the task of seeking information about the debtor. The bailiff would send him a statement of unsuccessful searches, and the public prosecutor would conduct the investigation.
This system has evolved in two stages:
- The Act of 11 February 2004 first imposed a duty to provide information directly to the department managing the bank account file.
- The Act of 22 December 2010 extended this obligation to public authorities and credit institutions.
The role of the public prosecutor in this research has disappeared. The bailiff can now obtain this information directly.
An extended obligation to provide information
Article L. 152-1 of the Code of Civil Enforcement Procedures defines the scope of the obligation:
"The administrations of the State, the regions, the departments and the communes, the companies conceded or controlled by the State, the regions, the departments and the communes, the public establishments or bodies controlled by the administrative authority must communicate to the bailiff in charge of the enforcement the information that they hold making it possible to determine the address of the debtor, the identity and address of his employer or any third party debtor or depositary of liquid or payable sums and the composition of his real estate assets, to the exclusion of any other information, without being able to invoke professional secrecy".
Banking institutions are also required to inform the bailiff whether an account has been opened in the debtor's name and where it is held.
This information is protected by article L. 152-3 of the same code, which states:
- Their use is limited to the execution of the security concerned
- A ban on communicating them to third parties
- A ban on creating a nominative file
Violation of these rules is punishable under article 226-21 of the French Penal Code.
Specific obligations of third parties
Specific reporting obligations
In the context of the attachment of bank accounts, article L. 162-1 of the French Code of Civil Enforcement Procedures requires banks to declare the balance of the debtor's account on the day of attachment.
This obligation applies even if the bailiff does not provide the account number. Case law requires a certain degree of precision: the banker must indicate the exact position of the account, whether it is in credit or in debit (Cour de cassation, commercial chamber, 6 May 1981).
Banking secrecy gives way to this legal obligation.
Lawyers may not invoke professional secrecy to refuse to disclose information about funds deposited in a CARPA account (Tribunal de grande instance de Rouen, 23 April 1987).
Extension to public accountants
Article L. 143-1 of the Code of Civil Enforcement Procedures provides for a similar obligation where the debtor receives income from a public accountant:
"When the measure must be carried out in the hands of a public accountant, any creditor holding an enforceable title or an authorisation for a precautionary measure may request the authorising officer to inform him of the public accountant to whom the expenditure is to be assigned, as well as any information necessary for the implementation of the measure".
Identical provisions apply to the Treasury accountant for the public recovery of maintenance payments.
The special situation of garnishees
Who can be a garnishee?
According to article L. 211-1 of the French Code of Civil Enforcement Procedures, a garnishee is a person who can seize a debtor's claims for a sum of money.
In practice, the following may become garnishees
- Lawyers with their own authority over client funds
- Notaries
- Bailiffs
- Judicial administrators
- Co-ownership trustees
- The banks
- Guarantees
- Legal representatives of incapacitated persons
Case law focuses on the third party's autonomy in managing sums belonging to the debtor. For example, a Court of Appeal ruled that an agreement between the debtor and the garnishee, terminating contractual relations after a protective attachment but before its conversion into an attachment for payment, extinguished the debtor's claim (Court of Cassation, 22 November 2001).
Strict reporting obligations
Article L. 211-3 of the Code of Civil Enforcement Procedures requires the garnishee to declare to the creditor the extent of its obligations towards the debtor, as well as any terms and conditions that may affect them.
This declaration must be made "immediately". Case law is very strict on this point. The following cases have been sanctioned:
- A company providing information the day after the bailiff's visit
- A bank objecting to the lack of details on account numbers
- A notary was absent when the bailiff arrived, even though his accountant could have responded.
In the event of non-compliance, article R. 211-5 of the Code of Civil Enforcement Procedures provides that the garnishee may be ordered to pay the sums owed to the creditor himself, unless there are legitimate grounds.
However, the Court of Cassation set three conditions for this conviction (rulings of 5 July 2000):
- The seizure must be valid
- The seized claim must exist
- The third party must refrain from making any declaration
Adjusting procedures
When a third party is involved, the procedure is systematically carried out in two stages:
- First with the third party
- Then to the debtor, with service within eight days
In the case of attachment for payment, the garnishee is obliged to pay on presentation of a certificate stating that no dispute has been lodged. If the garnishee refuses, the enforcement judge may issue a writ of execution against the garnishee.
When wages are seized, the employer must make monthly payments to the court clerk's office in respect of the portion of wages that may be seized. If the employer fails to make these payments, article R. 3252-28 of the French Labour Code provides that "the judge shall issue an order declaring the employer to be personally indebted".
The amount of your debt may determine whether your case requires only amicable collection or full legal proceedings. Procedural errors may result in the nullity of the deeds or sanctions against the creditor. Prior consultation will help you identify the best strategy and avoid costly pitfalls.
Sources
- Code des procédures civiles d'exécution, articles L. 111-1 et seq., L. 123-1, L. 143-1, L. 152-1 to L. 152-3, L. 162-1, L. 211-1, L. 211-3
- French Labour Code, articles R. 3252-24 to R. 3252-28
- Law no. 91-650 of 9 July 1991 reforming civil enforcement procedures
- Law no. 2004-130 of 11 February 2004 reforming the status of certain legal professions
- Law no. 2010-1609 of 22 December 2010 on the enforcement of court decisions
- Court of Cassation, Commercial Chamber, 6 May 1981, Bull. civ. IV, no. 212
- Tribunal de Grande Instance de Rouen, 23 April 1987, D. 1988
- Court of Cassation, 2nd Civil Chamber, 22 November 2001, no. 99-14.900
- Court of Cassation, 2nd Civil Division, 5 July 2000, no. 98-14.263, 97-21.606, 97-22.407 and 98-20.058
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