Stay of execution: how do you suspend the effects of a JEX decision?

You have just lost to the enforcement judge (JEX). You feel that the decision is questionable and you would like to appeal. Problem: this appeal has no suspensive effect. The decision remains immediately enforceable, with potentially irreversible consequences. A stay of execution is therefore your last resort to avoid immediate enforcement.

The scope of the stay of execution

A variety of decisions

The stay applies to all decisions handed down by the JEX, regardless of their nature. The Court of Cassation made this clear in its ruling of 18 December 1996 (Civ. 2e, no. 95-12.602): the stay applies even to decisions rejecting a challenge.

This solution is fully justified. Take the example of a debtor contesting an attachment order. If the JEX rejects his claim and this rejection is subsequently overturned on appeal, the consequences would be disastrous without a stay. Article R. 121-22 of the Code of Civil Enforcement Procedures has codified this case law.

Important exclusions

• Decisions relating to penalty payments (Civ. 2e, 14 June 2001, no. 99-18.082)
• Protective measures authorised on application (Civ. 2e, 8 July 2004, no. 02-14.573)
• Decisions without suspensive effect, except for releases

Article R. 131-4 of the Code of Civil Enforcement Procedures provides that astreintes are enforceable by operation of law. This rule applies whether the JEX liquidates the astreinte or pronounces a new one.

Requests for periods of grace are also excluded. To grant a stay of a decision granting a period of grace would be tantamount to refusing that period. As the Court of Cassation has emphasised (Civ. 2e, 19 November 2020, no. 19-17.931), an application to the JEX for a period of grace has no suspensive effect.

Conditions for obtaining a suspended sentence

Serious grounds for annulment or reversal

Article R. 121-22 of the Code of Civil Enforcement Procedures requires "serious grounds for annulment or reversal".

Unlike under ordinary law (articles 524 et seq. of the Code of Civil Procedure), you do not have to prove that immediate enforcement would entail "manifestly excessive consequences".

The First President has broad discretion to assess the seriousness of the grounds put forward (Civ. 2e, 6 December 2001, no. 00-13.402). These grounds may relate to the procedure or the substance of the dispute, as confirmed by the Court of Cassation (Civ. 2e, 28 June 2012, no. 10-13.884).

The procedure to follow

The application is made by summons before the First President of the Court of Appeal. The garnishee, if any, must be notified of this summons.

Timing is crucial. In the event of a release ordered by the JEX, the unavailability of the sums seized disappears as soon as the decision is notified (article R. 121-18 of the Code of Civil Enforcement Procedures). You must therefore act quickly to maintain this unavailability through the stay.

The powerful effects of probation

Immediate stay of proceedings

A simple application for a stay of proceedings suspends the proceedings until the First President's order. This automatic effect occurs if the contested decision has ordered the continuation of the proceedings.

If the First President grants the stay, the suspension continues until the appeal judgment.

Extension of the effects of seizures

If the contested decision has ordered a release, the application for a stay extends the effects attached to the decision. inputThis extension lasts until the first president's order, or even until the appeal judgment if the stay is granted. This extension lasts until the First President's order, or even until the appeal judgment if the stay is granted.

The Second Civil Chamber specified that this request also suspends the creditor's award of damages for misuse of the seizure (Civ. 2e, 2 March 2023, no. 20-21.303).

The risk of abusive requests

Deterrent penalties

To prevent dilatory claims, article R. 121-22, paragraph 4 of the Code of Civil Enforcement Procedures provides for a civil fine of up to 10,000 euros, without prejudice to damages.

However, the Court of Cassation has ruled that a well-argued claim, even if legally unfounded, is not manifestly abusive (Civ. 2e, 18 December 2003, no. 01-16.617).

Justify your request

To avoid sanctions, your request must be well-founded. In particular, identify any errors in the JEX's judgment:

• Errors of substantive law
• Violations of procedural rules
• Misrepresentation of facts or documents
• Internal contradictions

Effective strategies

Here are a few tried and tested approaches:

1. Act quickly on receipt of the judgment. The creditor could serve the decision to start the 15-day appeal period.
2. Make an appeal and simultaneously apply for a stay. These two actions are complementary.
3. Concentrate on the strongest arguments. One strong argument is better than several weak ones.
4. Highlight the irreversible consequences of the execution. Even if this is not a legal requirement, it can have a favourable influence on the first president.

The stay is an invaluable tool in the procedural arsenal when faced with an unfavourable decision by the JEX. The advice of an experienced lawyer can be decisive in identifying the serious grounds justifying this exceptional measure. Do not hesitate to consult to assess your chances of success.

Sources

• Code of civil enforcement procedures, articles R. 121-18, R. 121-22, R. 131-4
• Civ. 2e, 18 December 1996, no. 95-12.602
• Civ. 2e, 14 June 2001, no. 99-18.082
• Civ. 2e, 8 July 2004, no. 02-14.573
• Civ. 2e, 6 December 2001, no. 00-13.402
• Civ. 2e, 28 June 2012, no. 10-13.884
• Civ. 2e, 18 December 2003, no. 01-16.617
• Civ. 2e, 2 March 2023, no. 20-21.303
• Civ. 2nd, 19 November 2020, no. 19-17.931