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Enforcement (implying enforcement by force, since voluntary enforcement by the debtor of his obligations does not require proceedings) covers all proceedings permitting the carrying out of “enforceable” obligations against the debtor’s will. French law contains three categories of civil obligations: to pay, to do something or to refrain from doing something, and lastly to return).
An enforceable title concerns the debtor’s assets: there is no such thing as an enforceable title on a person. However, a refusal to comply with certain obligations (maintenance obligations) is a criminal offence, making the debtor liable to prosecution and to a prison sentence. The same applies to the fraudulent organisation of insolvency by a debtor.
The law concerning enforcement measures is based on a trilogy of paying, doing and giving.
Obligations to pay are enforceable by means of attachments. If the attachment concerns a sum of money, the sum attached will be assigned to the creditor (for instance, attachment of bank account). If the attachment concerns an asset belonging to the debtor, the attachment will result in the compulsory sale of the asset and the proceeds of the sale will be assigned to the creditor, up to the limit of his claim.
Obligations to give or to return vary depending on the nature of the asset. In the case of movable property, the asset is seized by way of an attachment to be returned to the legitimate owner. In the case of immovable property, possession of the property is returned to the owner by evicting the occupant.
Obligations to do or refrain from doing something are enforced by means of a pecuniary penalty, which is a sum of money the debtor must pay in addition to the obligation he must perform. The sum, fixed by a judge, is calculated in proportion to the period of failure to perform (in the case of obligations to do something) or according to the number of breaches of the obligation to refrain from doing something. Since obligations to pay, to give or to return are also interpreted as obligations to do something, a pecuniary penalty may be ordered in addition to other compulsory enforcement measures.
All enforceable titles or decisions can be the subject of compulsory enforcement measures. They are defined by Section 3 of Act No 91-650 of 9 July 1991 reforming civil enforcement proceedings, namely:
Court rulings not subject to an appeal suspending enforcement are enforceable without another judgment. These rulings, like notarial acts, are certified enforceable by the clerk of the court or by the notary. There is no other intermediate procedure that permits enforcement.
In the absence of a court ruling, creditors may obtain authorisation to proceed with preventive attachments or judicial restrictive measures. The measures taken under these conditions lapse rapidly if the other party has not been notified (within eight days) and if the creditor has not initiated proceedings on the merits to obtain a court ruling endorsing his claim.
Compulsory enforcement measures relating to movable property and sums of money, plus eviction, must be carried out by a bailiff, a public and professional officer who exercises his powers of private law but who, in the case of enforcement, enjoys public authority status determined by precise regulation and a strictly controlled ethical code.
Attachment of immovable property is carried out by means of special proceedings, usually before the Court of First Instance, for which the creditor must be represented by a lawyer.
Costs arising from enforcement measures are, in principle, paid by the debtor, who must pay them in addition to his debt.
These enforcement costs are subject to a scale of charges which establishes the remuneration owed to bailiffs for each enforcement measure. Under Decree No 96-1080 of 12 December 1996, the remuneration scale for bailiffs comprises a fixed amount expressed, either cumulatively or alternatively depending on the case, in fixed or proportional charges, plus, where appropriate a charge for commitment to prosecution.
The fixed charges must be paid by the debtor. The proportional charges, calculated according to a sliding scale applied to the amounts recovered, are paid partly by the creditor and partly by the debtor.
For information, for a claim of € 10 000, the scale of charges for some enforcement measures is as follows:
In addition to these fixed charges there are proportional charges which, for the entire claim, amount to €723. 44 incl. taxes, of which €121. 35 are paid by the debtor and €602. 09 by the creditor.
No court order is required to proceed with enforcement measures on the grounds of enforceable titles.
The criteria for authorising precautionary measures in favour of a creditor who does not yet have an enforceable title are as follows: the claim appears to be founded in principle and recovery of the claim appears to be at risk. The competent judge for ordering a preventive attachment is the enforcement judge (usually a judge in the Regional Court).
The creditor may enforce his claim against the debtor’s entire property, therefore in principle all the assets belonging to the debtor may be seized. Special rules exist depending on the nature of these assets: claims (rent, salaries, sums placed in a bank account) , movable property of all kinds, immovable property and rights in rem, securities and contributories’ rights, vehicles (land, sea vessels, boats or aircraft) , copyright, sums of money placed in a safe, etc.
The law may, however, state that certain assets may not be seized, for instance:
Enforcement measures on property and claims are carried out in two phases. First, the enforcement agent carries out the attachment of property or sums of money. This attachment means that the property cannot be disposed of: the debtor may continue to possess it and is made custodian of it. If he misappropriates this property, he commits an offence. In the case of sums of money, they remain blocked in the account, but are immediately, albeit virtually, assigned to the creditor in question.
The debtor is informed of the attachment. If the debtor does not inform the judge that he is challenging the attachment, the enforcement agent may proceed with the second phase of the attachment, namely seizing the property to have it sold at auction or asking the garnishee (usually the banker) to hand over the amounts attached.
The banker, called the “garnishee”, is obliged at the time of the attachment to inform the bailiff of all sums he holds for the debtor. If he fails to do so or if he hands over to the debtor the sums attached which are in his hands, the judicial penalty, at the request of the creditor, is that he shall be ordered to pay the debt instead of the debtor.
Enforcement titles are not subject to limitation and do not lapse after a period of time.
Orders by the executions judge to proceed with preventive attachments lapse if the precautionary measure is not taken within a period of three months from the order.
This question applies only to orders relating to preventive attachments. In the case of enforcement titles, resort to appeal is linked to a judicial challenge of the claim itself.
Once the precautionary measure has been taken and the debtor has been informed of this, the latter may dispute the conditions leading to the order before the executions judge who ordered the measure. A challenge may be brought before the judge provided that the preventive attachment has not been converted into a forced sale following judicial confirmation of the claim.
Last update: 02-05-2005