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Last update: 12-01-2007
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Interim and precautionary measures - France

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TABLE OF CONTENTS

1. What are the different types of measures? 1.
2. What are the conditions under which such measures may be issued? 2.
2.1. Please describe the procedure 2.1.
2.2. The substantive conditions 2.2.
3. Object and nature of such measures? 3.
3.1. What types of assets can be subject to such measures? 3.1.
3.2. What are the effects of such measures? 3.2.
3.3. What is the validity of such measures? 3.3.
4. Is there a possibility of appeal against the measure? 4.

 

1. What are the different types of measures?

  • Interim measures may always be issued urgently by the judge responsible for urgent interlocutory proceedings (urgent applications procedure, payment of a deposit, eviction, injunction, and preservation of evidence).

It is not possible to draw up an inventory of interim measures. In urgent interlocutory proceedings, all urgent measures may be obtained that are not seriously challenged or that do not justify a challenge (payment of a deposit, eviction of an unlawful occupier, expertise or recording of damage, and so on). Moreover, the judge in urgent interlocutory proceedings can urgently issue all measures that are necessary either to prevent imminent damage (for instance, stabilisation works) or to halt a manifestly illegal problem.

  • There is a special regime for precautionary measures (preventive attachments and judicial restrictive measures) which are the measures that enable a creditor, in most cases with the authorisation of a judge, to make all or part of the assets of his debtor inalienable, and measures that enable a special restrictive right to be assigned to an asset in order to guarantee the payment of a claim which is not yet recognised in a judgment, but recovery of which appears to be at risk.

Precautionary measures may take two forms:

  • preventive attachments, permitting the provisional seizure of tangible assets (movable property, vehicles, etc.) and intangible assets (a sum of money, contributories’ rights and securities) and claims (bank accounts, rent, etc.).
  • Judicial restrictive measures on buildings, businesses, holdings of other shareholders and property securities (registration of a provisional mortgage, or pledge of company shares or securities).

2. What are the conditions under which such measures may be issued?

2.1. Please describe the procedure
Is it always necessary to apply for a court order authorising the measure?
  • Interim measures: the case must be referred to the judge responsible for the urgent interlocutory proceedings by a summons (a writ served by a bailiff). The interlocutory proceedings are adversarial.
  • Precautionary measures: In theory, prior authorisation by the judge is needed. However, some creditors are dispensed from such authorisation in the case of an enforceable entitlement or claims recognised in a court ruling that is not yet enforceable. The same applies in the case of failure to pay an accepted bill of exchange, promissory note or cheque, or in the case of rent due for a building (if the lease is in writing).
What court has competence for ordering such measures?
  • Interim measures: the competent judge is the president of the competent court, depending on the nature of the petition. Jurisdiction in the ordinary law therefore lies with the president of the Regional Court. However, district courts, the president of a commercial court, of an industrial tribunal or of an agricultural land tribunal may also rule in urgent interlocutory proceedings within the limits of their jurisdiction.
  • Precautionary measures: the competent judge is the judge of the Regional Court with jurisdiction to decide questions relating to the execution of civil judgments (executions judge). The competent judge is the judge in the place where the debtor resides.
Is it mandatory to be represented by a lawyer? 

No, the parties defend themselves in enforcement or urgent interlocutory proceedings. They may, however, be assisted or represented by a lawyer.

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What is the role of the intermediaries such as enforcement agents or bailiffs?

Preventive attachments must be carried out by a bailiff. This is not the case for the registration of judicial restrictive measures. However, given the complexity of the judicial procedure for registering a restrictive measure, creditors are always assisted by a professional.

Please provide a scale of costs for each type of measure.

The cost of precautionary measures is, in the end, paid by the debtor, although the creditor may be required to make an advance payment for this. The enforcement costs are subject to a scale of costs which fixes the remuneration of bailiffs for each act of enforcement and each precautionary measure.

Under Decree No 96-1080 of 12 December 1996, the remuneration scale for bailiffs comprises a fixed amount expressed, either cumulatively or alternatively as the case may be, in fixed or proportional charges, plus, where appropriate, a charge for commencement of proceedings.

In the case of precautionary measures, the proportional charges calculated on the basis of the amounts recovered are payable only if the bailiffs receive a mandate to recover the sums owed. Moreover, the nomenclature annexed to the above-mentioned Decree rules out the possibility of an additional fee that is freely negotiated, with the exception, however, of preventive attachments of contributories’ rights and of securities.

For information, for a claim of € 10 000, the components of the scale of charges (fixed charges) are as follows:

  • Preventive attachment of movable property: €67.20 for the transaction.
  • Attachment of vehicle by declaration at the regional administrative office: €62.40.
  • Preventive attachment of bank account: €59.20 for the transaction; €49.60 for serving the notice of attachment to the debtor.
  • Registration of a provisional mortgage ordered by the court: €49.60.
2.2. The substantive conditions

The court does not carry out the measure but merely authorises it. The measure is carried out by the bailiff, at the request of the beneficiary of the court’s authorisation.

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If the prior authorisation of a judge is required, the claim must be “founded in principle”.

For precautionary measures, there is no express requirement of urgency.

Creditors must show that there are “circumstances likely to threaten recovery” of the claim (for instance, the bad faith of the debtor who is concealing his assets, a large number of creditors, etc.).

3. Object and nature of such measures?

3.1. What types of assets can be subject to such measures?

All the debtor’s assets which the law does not declare to be “exempt from attachment” (for instance the assets needed for everyday life or the performance of one’s profession) may be subject to a preventive attachment. The same applies to claims: however, salaries can never be subject to preventive attachment measures (even though they can be seized on the basis of a court ruling or other enforceable title, depending on the procedure for attachment of remuneration).

3.2. What are the effects of such measures?

Assets attached on a precautionary basis may not be disposed of. The debtor retains possession of them, under his responsibility, but he may not dispose of them. Should the debtor misappropriate the assets that have been attached, he is committing an offence punishable by a fine and by imprisonment.

Sums of money that are attached are deposited in a blocked account.

Assets subject to judicial restrictive measures may be sold by the debtor, but the creditor has a claim on the proceeds of the sale with privileged stocks.

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Assets attached on a precautionary basis are placed under the responsibility of the debtor, who is made the “custodian” of them. The effect of the attachment is not binding on third parties. On the contrary, judicial restrictive measures which are subject to publicity measures (registration) are binding on all.

Bankers (and in general all third parties) who receive a request for a preventive attachment relating to a client are obliged to report immediately to the bailiff all of their obligations with respect to the debtor (in other words, all the accounts opened in the name of the debtor, and the amounts recorded in the accounts). If bankers do not provide such details, and have no legitimate reason for not doing so, they may be ordered to pay the debt in place of the debtor.

3.3. What is the validity of such measures?

Precautionary measures must be taken within three months of the injunction issued by the authorising judge. Otherwise the authorisation becomes invalid.

If the creditor has not already initiated proceedings to have his claim recognised, he must do so within a month of the measure being taken. Otherwise the measure becomes invalid.

The debtor must be notified of the precautionary measure within eight days at the latest. The debtor may apply to the enforcement judge to have the measure or its authorisation set aside. The judge may also have decided in advance on a date for a hearing at which the parties are required to argue the measure. In principle, the debtor’s application to have the measure set aside is admissible provided the preventive attachment has not been converted into an attachment of goods as a result of the creditor obtaining a court ruling concerning his claim.

4. Is there a possibility of appeal against the measure?

The debtor may appeal against the injunction and against the measure itself.

The executions judge, who is competent to grant authorisation of precautionary measures, may also hear appeals against injunctions. His decisions may be appealed before the Court of Appeal.

Insofar as the debtor receives notice of the authorisation of the measure at the same time as the measure itself, the application to have the injunction set aside is subject to the same rules as the application to have the measure set aside: it is admissible provided that the precautionary measure has not been converted into an attachment of goods.

An appeal does not interrupt the effect of the precautionary measure which continues to produce its effect until the judge orders the lifting of the attachment or declares the measure void.

Further information

  • Legifrance français
  • French Ministry of Justice français

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Last update: 12-01-2007

 
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