The principle of the suspensive effect of ordinary remedies is one of the pillars of French private judicial law. However, this is not the case, provisional enforcement derogates from this, allowing a decision to be enforced immediately despite an appeal or opposition. This derogation is not insignificant: it considerably alters the balance of power between the parties to the dispute.
1. Provisional enforcement by operation of law: when the law imposes itself on the judge
Provisional enforcement is automatic. It applies without the judge being able to exercise any discretion.
In the old regime
Prior to Decree no. 2019-1333 of 11 December 2019, provisional enforcement as of right applied in several specific cases, including:
- Summary orders (article 489, paragraph 1 of the Code of Civil Procedure)
- Decisions ordering interim measures in the course of proceedings
- Decisions ordering precautionary measures
- Orders of the pre-trial judge granting an advance to the creditor
The most characteristic example was that of summary orders. The case law had clarified that "a summary order is automatically provisionally enforceable in all its provisions" (Civ. 2e, 24 June 1998, no. 96-22.851).
Under the new system
Since 1 January 2020, the legislator has made a radical change. Article 514 of the Code of Civil Procedure now provides that "first instance decisions are enforceable provisionally unless the law or the decision rendered provides otherwise."
The principle is therefore reversed: provisional enforcement becomes the rule rather than the exception. The practical consequences of this immediate enforcement during the appeal or opposition are crucial to analyse.
However, the judge may to set aside provisional enforcement by operation of law if it "considers that it is incompatible with the nature of the case" (article 514-1 of the CPC). However, this option is excluded for certain types of decision:
- Summary orders
- Decisions of the pre-trial judge granting an advance on costs
- Interim or protective measures
2. Optional provisional enforcement: the judge's discretion
Unlike de jure provisional enforcement, optional provisional enforcement is at the discretion of the judge.
Prerequisites
Article 515 of the Code of Civil Procedure provides that the court may order provisional enforcement:
- At the request of a party or ex officio
- For all or part of the sentence
This provisional enforcement is subject to several conditions:
- It must not be prohibited by law For example, certain decisions cannot be enforced provisionally, such as decisions relating to nationality (article 1045 of the CPC).
- It must be compatible with the nature of the case Case law has developed this notion of incompatibility, particularly in matters of personal status. For example, "the provisional enforcement of an order to pay an eviction indemnity is incompatible with the right of a tenant under a commercial lease to remain on the premises" (Civ. 3e, 5 April 2006, no. 04-12.598).
- It must be necessary Introduced by decree no. 73-1122 of 17 December 1973, this condition replaced the former condition of urgency. It is assessed by the judge on a case-by-case basis.
3. Area of application according to the applicable scheme
In the old regime
Optional provisional execution could be ordered "except in cases where it is de jure" and provided that "it is not prohibited by law".
Under the new system
Article 515 of the CPC, amended by the Decree of 11 December 2019, provides that the judge may order provisional enforcement "where it is provided by law that provisional enforcement is optional."
This new wording raises a number of questions. Does the law need to make explicit provision for it? If so, the scope of optional provisional enforcement would be considerably reduced, practically limited to industrial tribunal decisions (article R. 1454-28 of the Labour Code expressly provides for this option).
But this restrictive interpretation does not seem to correspond to the legislator's intention. More likely, optional provisional enforcement may be ordered where it is not de jure and is not prohibited by law.
4. Judge competent to grant optional provisional enforcement
Author of the decision
The judge who renders the decision may order provisional enforcement, of his own motion or at the request of a party.
Article 516 of the CPC lays down an important rule: provisional enforcement can only be ordered by the decision that it is intended to enforce. This is the rule of contemporaneity.
In practice, this means that the judge cannot order provisional enforcement once he has given his decision. Once he has relinquished jurisdiction, he loses this power.
Appeal judge
In the event of omission or refusal at first instance, provisional execution may be granted by :
- The First President of the Court of Appeal
- The Conseiller de la Mise en Saiton, when the matter is referred to him/her
However, under article 525 of the CPC (now article 517-2), the appeal judge may only grant provisional enforcement refused at first instance in an emergency.
This condition of urgency considerably limits the power of the appeal judge in this area.
Experience shows that the choice of whether or not to enforce a decision provisionally can have a decisive impact on the outcome of the dispute. An effective litigation strategy must take this into account from the outset.
In a context where the very principle of the suspensive effect of legal remedies is increasingly being called into question, it is becoming essential to master the mechanisms of provisional enforcement, both for the defence and for the claim.
The firm remains at your disposal to assess the advisability of requesting or contesting provisional enforcement in your case. Please do not hesitate to contact us for an initial meeting to analyse your legal situation.
Sources
- Code of Civil Procedure, articles 514 to 526
- Decree no. 2019-1333 of 11 December 2019 reforming civil procedure
- Civ. 2e, 24 June 1998, no. 96-22.851, Bull. civ. II, no. 222
- Civ. 3e, 5 April 2006, no. 04-12.598, Bull. civ. III, no. 92
- Ph. HOONAKKER, L'effet suspensif des voies de recours dans le nouveau code de procédure civile: une chimère? Contribution à l'étude de l'exécution provisoire, thesis, Strasbourg, 1988
- HOONAKKER, L'arrêt de l'exécution provisoire de droit enfin consacré par le législateur, D. 2004. Chron. 2314
- French Labour Code, article R. 1454-28
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