The astreinte is a formidable tool in the French legal arsenal. This indirect coercive measure is designed to encourage a debtor to fulfil his obligations under the threat of a financial penalty. Unlike damages, the astreinte has a coercive rather than remedial function.
Who can impose an astreinte? How is it implemented? What are its legal effects? This article addresses these questions, which are essential to understanding the astreinte mechanism.
1. Courts with jurisdiction to impose a penalty payment
A widely shared skill
The principle is clear: "Any court may, even of its own motion, order a penalty payment to ensure that its decision is enforced" (article L. 131-1 of the Code of Civil Enforcement Procedures). This all-encompassing wording means that any court, whether ordinary or specialised, may attach an astreinte to its decision.
Courts such as commercial courts and industrial tribunals have this power. Criminal courts can also impose periodic penalty payments for the civil aspects of their decisions.
The interim relief judge: jurisdiction confirmed
Long debated, the jurisdiction of the interim relief judge to impose an astreinte is now fully recognised. Article 491 of the Code of Civil Procedure explicitly confirms this: "The interim relief judge who attaches a penalty to his decision may reserve the right to liquidate it".
According to the Court of Cassation (Civ. 2e, 4 May 1977, no. 74-14.917), the interim relief judge may even impose a definitive astreinte, provided that a provisional astreinte has first been ordered.
The enforcement judge: a specific role
The enforcement judge occupies a special position. In addition to his general power to impose an astreinte on his own decisions, article L. 131-1, paragraph 2 of the Code of Civil Enforcement Procedures gives him an additional prerogative: "The enforcement judge may impose an astreinte on a decision handed down by another judge if the circumstances make this necessary".
However, this jurisdiction is not exclusive. The Court of Cassation has ruled that "the jurisdiction conferred on the enforcement judge to impose an astreinte on a decision handed down by another judge does not prevent the latter from being seised with a view to imposing an astreinte on the decision he has handed down" (Civ. 2e, 18 February 1999, no. 97-13.885).
To apply to the enforcement judge for an astreinte (fine), a writ of summons is required, not a petition (Com. 10 Sept. 2009, no. 08-16.616).
2. The procedure for imposing a penalty payment
Initiative: judge or parties
The astreinte may be ordered by the court or at the request of a party. Article L. 131-1 of the Code of Civil Enforcement Procedures states that the court may order an astreinte "even of its own motion".
This option distinguishes the astreinte from other enforcement measures and underlines its public policy nature. As Professor Perrot explains, "an astreinte is more of an administrative measure than a jurisdictional one. It is a process of intimidation outside the trial, which is at the level of imperium when the law has already been said".
Although the judge is never obliged to order an astreinte, he must give reasons for his refusal when a party has expressly requested it. However, a refusal of a request for a penalty payment does not have the force of res judicata (Civ. 2e, 4 June 2009, no. 08-11.129).
Form and content of the decision
The decision to impose an astreinte must specify its nature (provisional or definitive), the amount and the method of calculation. An unqualified astreinte is presumed to be provisional.
A definitive astreinte may only be ordered after a provisional astreinte has been pronounced and for a specified period (article L. 131-2, paragraph 2 of the Code of Civil Enforcement Procedures). Otherwise, it will be liquidated as a provisional astreinte.
Setting the amount and calculation methods
The judge is free to set the amount of the astreinte. This freedom stems from the independence of the astreinte from damages (article L. 131-2, paragraph 1 of the Code of Civil Enforcement Procedures).
In practice, the astreinte is generally set at an amount per day of delay, per infringement observed or per specified period. The amount must be proportionate to the debtor's financial resources and the extent of the obligation to be performed.
The Court of Cassation has also stated that "since the judge has the power to impose a penalty payment ex officio, he may, without ruling ultra petita, set a higher rate than that requested" (Civ. 3e, 4 April 2012, no. 10-23.527).
3. Starting point and effects of the astreinte
The start of the on-call period
Article R. 131-1 of the Code of Civil Enforcement Procedures states that "the astreinte takes effect on the date set by the judge, which cannot be earlier than the day on which the decision imposing the obligation becomes enforceable".
In practice, the astreinte starts to run from the date of notification of the decision ordering it, generally by means of service by a bailiff. If the judge has not specified a date, the astreinte runs from the date of notification (Civ. 2e, 23 June 2005, no. 03-16.851).
Impact of appeal procedures
The effect of appeals on the astreinte depends on the enforceability of the decision that imposed it.
If the decision is provisionally enforceable (which has become the principle since Decree no. 2019-1333 of 11 December 2019), the appeal does not affect the course of the astreinte. It can therefore be liquidated before the Court of Appeal's ruling.
On the other hand, if the decision is not enforceable, the astreinte does not take effect until the day on which the Court of Appeal's decision is notified (Civ. 2e, 11 June 1997, no. 95-13.961).
Special case: appeal and recourse
The cassation of a judgment imposing a penalty payment entails "ipso jure, on the grounds of loss of legal basis, the annulment of the decisions taken to liquidate the penalty payment" (Com. 6 May 2003, no. 01-01.118).
If the Court of Appeal upholds a judgment that has been provisionally enforced, the astreinte is effective from the date set by the original judges. On the other hand, if it modifies the rate of the astreinte, the new astreinte only runs from the date of notification of the judgment (Civ. 2e, 8 July 2004, no. 02-20.368).
4. Astreinte and foreign enforceable titles
Astreinte on a foreign judgment
The French court may impose a penalty on a foreign judgment that has been granted exequatur. This power derives from its general jurisdictional authority.
As the Cour de cassation has emphasised, as a penalty payment is a measure ancillary to a principal obligation, the jurisdiction to impose it follows that relating to that obligation (Civ. 1re, 19 November 2002, no. 00-22.334).
Recognition of foreign standby duty
Recognition in France of an astreinte ordered by a foreign court presupposes that it has been liquidated in the State of origin.
According to Article 55 of the Brussels Ia Regulation, "a foreign judgment given in a Member State imposing a periodic penalty payment shall be enforceable in the Member State in which enforcement is sought only if the amount of the payment has been finally determined by the court of origin".
Applicable European framework
In the European judicial area, the enforcement of periodic penalty payments is governed by several texts, in particular Regulation (EU) No 1215/2012 of 12 December 2012 (Brussels Ia).
The Court of Justice of the European Union has clarified that "the recovery of a periodic penalty payment ordered by the court of the Member State of origin which has ruled on the substance of the right of access for the purpose of ensuring the effectiveness of that right falls within the same enforcement regime as the decision on the right of access which that periodic penalty payment guarantees" (CJEU 9 September 2015, Bohez v Wiertz, Case C-4/14).
Ultimately, the astreinte mechanism requires precise knowledge of the applicable rules. The success of this coercive measure often depends on the proper formulation of the request and the procedural strategy adopted. When large sums are at stake or when the case is particularly complex - especially when cross-border issues are involved - it may be wise to consult a specialist lawyer to maximise your chances of seeing the obligation enforced.
Our law firm can help you with this process. Contact us for an initial meeting to assess your situation.
Sources
- Code of civil enforcement procedures: articles L. 131-1 to L. 131-4 and R. 131-1 to R. 131-4
- Code of civil procedure: article 491
- Court of Cassation, 2nd Civil Division, 4 May 1977, no. 74-14.917
- Court of Cassation, 2nd Civil Division, 18 February 1999, no. 97-13.885
- Court of Cassation, 2nd Civil Division, 11 June 1997, no. 95-13.961
- Court of Cassation, 3rd Civil Division, 4 April 2012, no. 10-23.527
- Court of Cassation, 2nd Civil Division, 23 June 2005, No. 03-16.851
- Court of Cassation, judgment of 6 May 2003, no. 01-01.118
- Court of Cassation, 2nd Civil Division, 8 July 2004, No. 02-20.368
- Court of Cassation, 1st Civil Division, 19 November 2002, No. 00-22.334
- CJEU, 9 September 2015, Bohez v Wiertz, Case C-4/14
- Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 (Brussels Ia)
- Répertoire de procédure civile - Frédéric GUERCHOUN, "Astreinte", November 2021
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