The succession of laws over time is a source of legal complexity, particularly in the area of civil enforcement proceedings. When a reform comes into force, it raises an essential question: which law should apply to proceedings that have already begun? The complexity of transitional law in this area requires a detailed analysis, which is at the heart of our expertise in enforcement proceedings. The aim of this article is to provide you with an overview of the guiding principles and their practical implications, bearing in mind that each mechanism is the subject of detailed analyses on this website, a veritable tool for practitioners.
The fundamental principles of the application of the law over time in pce
To grasp the subtleties of transitional law, it is essential to master the general framework of the civil enforcement procedures (PCE), The general principle, affirmed by case law and governed by general law, is that of the immediate application of new laws relating to enforcement measures, in the absence of provisions to the contrary. The general principle, affirmed by case law and governed by ordinary law, is that of the immediate application of new laws relating to enforcement measures, in the absence of provisions to the contrary. However, there are important exceptions to this principle, which ensure the legal certainty of actions already taken and proceedings already in progress.
Immediate application of new laws and derogations (judicial constraint, penalty payment)
As procedural rules, new laws on enforcement measures apply in principle to situations already underway as soon as they come into force. The evolution of the contrainte par corps, now known as contrainte judiciaire, is a good illustration of this rule. Case law has always considered this measure to be an act of forced execution, a powerful tool for enforcing an obligation, and not a penalty, thus justifying the immediate application of new laws to proceedings commenced under them, even if the initial debt arose under previous legislation. However, the legislator may provide for adjustments. The Act of 9 March 2004, which introduced the judicial restraint order, stipulated that legal restraint orders in force on the date it came into force would be enforced until they expired, temporarily maintaining the application of the old law. Similarly, legislative changes concerning rules applicable to astreinte perfectly illustrate the principle of immediate application of procedural laws.
The survival of old law: mechanisms and scope
The main exception to the principle of immediate application is the survival of the old law. This mechanism ensures that procedural acts duly performed before a reform are not called into question. The new law cannot retroactively invalidate what was validly done under the previous law. This survival is often dictated by express transitional provisions laid down by the legislature. This was the case with the major reform of civil enforcement procedures in 1991, which the law specified would not apply to enforcement measures «commenced» before its entry into force on 1 January 1993. The question of the survival of the old law is particularly important for mechanisms such as interruption of limitation periods by an act of execution, the effect of which is governed by art. 2241 of the Civil Code.
Impact of new legislation on the jurisdiction and form of seizures
Any procedural reform potentially modifies the rules determining which judge has jurisdiction and what formalities must be complied with to complete a seizure. The transitional law is designed to reflect these changes for proceedings already pending before the courts, as part of the new judicial organisation.
Jurisdictional rules: immediate application or survival of the old law?
Reforms modifying the jurisdiction of the Enforcement Judge (JEX) are, as a matter of principle, immediately applicable, even to proceedings instituted before their entry into force. The Court of Cassation clarified this point in an opinion of 29 November 1993: a new law on jurisdiction applies immediately. There is, however, one major exception: if a court decision on the merits of the case has already been handed down at first instance before the new law comes into force, the jurisdiction of the court initially seised is maintained. This survival of the old law ensures the continuity of proceedings and avoids calling into question a procedure that is already well advanced.
Rules governing the form of seizures: validity of deeds and legislative changes
The transitional law also applies to the formalities governing seizures. The principle is simple: procedural acts performed before the new law remain valid if they complied with the formalities in force at the time they were performed. On the other hand, all documents issued after the reform came into force must comply with the new requirements. In addition to questions of jurisdiction, transitional law raises questions about the validity of procedural acts under the old law, which themselves depend on the existence of a valid enforceable title. Recent reforms provide a good illustration of these adjustments, such as the merger of the tribunaux de grande instance and tribunaux d'instance into the tribunal judiciaire in 2020, which has necessitated adjustments for attachments of earnings, or the abolition of the requirement to refer a matter to the court by a simple declaration to the registry in favour of a petition, which was made applicable by decree to proceedings in progress on 1 January 2021.
Impact of transitional laws on the substantive rules governing seizures
In addition to form and jurisdiction, new laws may modify the substantive conditions for seizures. Applying these rules over time is a matter of legal certainty, but procedural deadlines are a particularly technical issue.
Substantive conditions and fraction subject to seizure
The substantive conditions for seizure, such as the nature of the claim or the assets that may not be seized, are determined by the law in force on the day the enforcement measure is initiated. A striking historical example is the law of 12 January 1895, which limited the fraction of wages that could be seized. The Court of Cassation ruled that for wages earned before the new law, the portion that could be seized remained governed by the old law, confirming the idea that this basic rule applies to the wage claim at the time it arises.
The crucial issue of procedural time limits (expiry, lapse)
Time limits, whether lapsing or expiring, are at the heart of concerns in transitional law. A new law that modifies a procedural time limit applies in principle to time limits that begin to run after its entry into force. For time limits that are already running, the case law of the Court has established a protective rule: the new time limit only runs from the date the law comes into force, and its total duration cannot exceed that of the old time limit. For example, the decree of 27 November 2020 extended the time limit for expiry of a summons to pay for the seizure of property from two to five years. This new period applies to proceedings in progress on 1 January 2021, giving breathing space to proceedings that have already begun but have not been completed before December 2024.
The prize distribution procedure and legislative transitional measures
The outcome of a seizure is the distribution of the sale price of the assets. Reforms can change the order of payments and the jurisdiction of the court responsible for distribution. The concept of «proceedings initiated» therefore becomes the central criterion for determining the applicable law.
Prize distribution: a change in jurisdiction
The 1991 reform transferred jurisdiction over distribution proceedings to the Enforcement Judge. For ongoing cases, the Cour de cassation specified that the former judges of orders and distributions remained competent only if, by a court decision, they had already drawn up a statement of provisional distribution before 1 January 1993. This factual criterion illustrates how transitional law anchors the application of the law in the concrete stages of the procedure.
The decisive role of the «initiated procedure»
The legislature itself often specifies the temporal scope of its reforms. The 1991 Act thus provided that it would not apply to «enforcement measures [...] commenced before its entry into force». But what constitutes «proceedings commenced»? Jurisprudence had to decide. In the case of an attachment for sale, a simple summons to pay was deemed to be a preparatory act. The procedure is only «initiated» at the time of the seizure itself. In the case of a seizure of property, on the other hand, enforcement is deemed to have commenced as soon as the summons is published. This distinction is fundamental because it determines whether all future acts and proceedings will follow the old or the new legal regime.
Transitional law and securities in insolvency proceedings: issues and reforms
Transitional law interacts in a complex way with successive reforms of the law on security interests and collective proceedings. The 2021 ordinances have radically overhauled these areas, with direct consequences for creditors' rights over time.
The impact of reforms to security law (Ordinance 2021-1192)
The 2021 reform reinforced the accessory nature of surety bonds. The new article 2298 of the Civil Code (art. 2298 of the Code civ.) allows the guarantor to raise against the creditor almost all the defences that the principal debtor could himself raise. This provision applies to guarantees entered into on or after 1 January 2022, and changes the position of creditors in proceedings commenced after that date.
Temporal application and collective proceedings (Order 2021-1193)
The Ordinance on companies in difficulty, which came into force on 1 October 2021, amended the rules for proceedings opened after that date. In particular, it clarified the order of payment of creditors in judicial liquidation (new Article L. 643-8 of the French Commercial Code), by clarifying the ranking of secured creditors in relation to super-privileged claims. These rules, which are a matter of public policy, apply immediately to the new procedures, affecting the rights of each creditor even if their securities were constituted under a previous law.
Managing conflicts of laws over time in the area of enforcement is a delicate exercise that requires in-depth knowledge of successive reforms and case law (to find out more, see Rép. pr. civ. Dalloz). Faced with such a complex issue, the assistance of a lawyer is crucial to securing your rights. Our firm offers you the benefit of our expertise in enforcement procedures.
Frequently asked questions
What is transitional law in enforcement proceedings?
Transitional law is the set of rules that determine which law (the old or the new) applies when a legislative reform comes into force while an attachment or enforcement procedure is already underway.
Does a new law still apply to my current foreclosure proceedings?
In principle, yes. This is a principle of French law. Procedural laws, such as those governing seizures, apply immediately. However, there are important exceptions to this principle to ensure the legal certainty of acts already performed.
What does «survival of the ancient law» mean?
This means that, in certain cases, the law in force prior to the reform continues to apply to a procedure. This is often the case where a decision on the merits has already been handed down or where the law itself provides for specific transitional provisions.
Is a seizure carried out before a reform still valid?
Yes, a procedural act (such as a summons to pay) that has been validly completed in accordance with the rules in force at the time it was carried out remains valid and retains its legal effect. On the other hand, subsequent procedural acts will have to comply with the new law.
Who decides which law to apply in the event of a conflict?
It is the judge, and in particular the enforcement judge (JEX), who decides on conflicts of application of the law over time on the basis of the general principles of transitional law, any specific provisions laid down by the legislator and the case law of the court of appeal or cassation.
Why is the date on which a procedure is «initiated» so important?
This date is often the criterion used by the legislator or the judge to determine whether the proceedings should remain subject to the old law or be governed by the new text. The definition of what constitutes the commencement of proceedings varies according to the type of seizure.
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