In a judgment of 11 January 2023, the French supreme court for private and criminal matters (Cour de cassation) ruled that enforcement measures can be validly carried out 5 minutes after the certificate provided for in Article 53 of the Brussels I bis Regulation was served on the judgment debtor.
I have already reported on this judgment which also addressed the issue of the scope of the exclusive jurisdiction in Article 24(3).
The case was primarily concerned with the enforcement of an English money judgment rendered in 2012 and thus subject to the Brussels I Regulation. However, the English court delivered an order in 2018 which ruled that the shares owned by the wife of the judgment debtor in a French company were only held fictitiously by the wife, and that they should be considered as actually owned by the debtor, her husband. The 2018 English order was subject to the Brussels I bis Regulation.
The judgment creditor initiated enforcement proceedings in France over the shares on the basis of both the 2012 judgment and the 2018 order.
Requirements for Enforcing the English Decisions in France
There was no issue that the 2012 judgment was enforceable in France: the creditor had obtained a declaration of enforceability from the competent French authority, pursuant to the Brussels I Regulation shortly after obtaining the judgment.
However, in order to enforce the 2018 order, it was necessary to obtain an Article 53 certificate from the court of origin, and serve it on the debtor “before the first enforcement measure”, pursuant to Article 43(1) of the Brussels I bis Regulation.
Article 43 does not say how long in advance the certificate should be served on the debtor, but Recital 32 explains that service should be effected “in a reasonable time” before the first enforcement measure.
In that case, the creditor served the certificate on the debtor at 2:55 pm. Then, it carried out the attachment of the shares at 3 pm.
The debtor applied for the attachment to be lifted on a number of grounds, including that the attachment had not been carried out in a reasonable time after service of the certificate.
The argument was not formulated very clearly at the early stages of the proceedings. The court of appeal only underscored that service of the certificate was the only requirement for enforcing the 2018 order, and that service had been made at 2:55 pm, before the attachment.
In contrast, the argument was perfectly formulated in the appeal before the Supreme Court, with a direct reference to Recital 32 and to the claim that 5 minutes was not a reasonable time.
The Cour de cassation dismissed the appeal and thus validated the attachment.
Unfortunately, while it did answer the argument on the jurisdiction of the English Court, it did not give any reason to dismiss the argument on the time of service of the Article 53 certificate, except that it was manifestly wrong. It held:
Sur les premier et deuxième moyens et sur le troisième moyen, pris en seconde branche, ci-après annexés
En application de l’article 1014, alinéa 2, du code de procédure civile, il n’y a pas lieu de statuer par une décision spécialement motivée sur ces griefs qui ne sont manifestement pas de nature à entraîner la cassation.
And that’s it !
The French Cour de cassation has long been famous for delivering cryptic decisions, offering reasons in a couple of sentences. In recent years, however, the Court has realised that it had to make efforts and give more reasons in order to improve the accessibility of its judgments and of the law generally. The Court entered into a new era of motivation enrichie (enriched reasons), or motivation développée.
Well, so much for motivation enrichie and developpée.
We are back to the days of guessing what the court meant. What we know, however, is that the challenge against the enforcement measure has now been finally dismissed, and that the argument that the certificated was served 5 minutes before the enforcement measure was rejected, and that it was considered “manifestly” wrong.
The requirement that the art 53 certificate was introduced in 2012. While the European lawmaker was completing its project of abolishing all intermediate measures to enforce foreign judgments within the EU (initiated in Tampere in 1999), it reintroduced one with Art. 43(1): the requirement only applies to the enforcement foreign jugdments, and is thus an additional delay and cost for the creditor. Just as good old exequatur.
The goal is to offer an additional protection to the debtor by informing him of the intention of the creditor to initiate enforcement proceedings in another Member State. But one wonders why the debtor should receive any additional protection. By definition, he was ordered to pay the monies by an enforceable judgment, which means that he could not convince the foreign court. He still does not want to pay, which forces the creditor to initiate enforcement proceedings. Finally, the debtor may be taking step to dispose of his assets, which is exactly what the debtor had done in this case, by transferring his assets to his wife. This all begs the question of why EU law should afford him any additional protection. Have we not reached the stage where the right to enforcement of the creditor should simply prevail?
It is therefore submitted that this judgment of the Cour de cassation is excellent, and that Article 43(1) of the Brussels I bis Regulation should be abolished, as the EAPIL Working Group on the Reform of the Brussels I bis Regulation will hopefully propose.
Distinguishing Enforceability and Enforcement of Judgments
If we leave aside policy and get back to law, there are several grounds which could be put forward to justify the outcome of this judgment.
Let’s first insist that the measures carried out over the shares at 3 pm were enforcement measures, aiming at transferring their ownership to the creditor. They were not protective measures, to which Article 43(1) does not apply (see Article 43(3)). Unfortunately, the judgment mentions at the beginning that the measure was a “saisie conservatoire“. This is simply a mistake (!), and art. 43(3) was never raised at any point of the proceedings.
The best rationale for the outcome of the judgment is that the proceedings were concerned with the validity of the French enforcement measure over the shares. As the CJEU has repeatedly held, however, the Brussels I bis Regulation only governs the conditions at which foreign judgments become enforceable in other Member States, but does not govern enforcement per se. The validity of French enforcement measures is only governed by French law. The requirement that the Article 53 certificate be served could not, therefore, impact the validity of an enforcement measure. It could only limit the enforceability of the foreign judgment. But there is no indication in the Brussels I bis Regulation that service of the certificate is a requirement for extending the enforceability of judgments in other Member States.
Finally, one wonders whether it was necessary to enforce the 2018 English order in the first place. The money judgment was the 2012 judgment. The 2018 order did not really need to be enforced. It only declared who the owner of the relevant assets was. Arguably, it would have been enough to recognise the 2018 order. And for that purpose, Article 43(1) does not require service of the Article 53 certificate.
Very interesting, and not only for the wonderfully lofty dismissal by a wonderfully lofty court. I suppose the only question I would ask is whether this five-minute warning (and remembering that service, which may take many forms, may not be immediately followed by reading and comprehension) jeopardises the right of the judgment debtor, no matter how unworthy he may appear to be, to apply for a refusal of enforcement. If that right is given, it should not be allowed to be undermined, for the judgment of the original court may not always be as pellucid as that of the High Court in this case. If on analysis this decision does not undermine that right, then I agree that there is no problem; if it may do or does, I am not so sure that we should treat a judgment debtor as some kind of outlaw.
I guess it depends whether you consider that the debtor could apply for refusal of enforcement even before enforcement (per se) actually took place, and whether that is the point of the reform of abolition of exequatur. My view is that the goal of the reform was to postpone any application to refuse enforcement at the stage of after enforcement started, together with other challenges to enforcement available under domestic law. So I do not really see what the warning of a potential intention to start enforcement changes.
Additionally, if the point was to seek refusal of enforcement before it took place, then you would need to know in which Member State enforcement would occur (for you could only seek refusal in that MS). But the certificate does not say that. And, although some scholars argue otherwise, there is no obligation to serve the certificate in each Member State where you intend to initiate enforcement proceedings, it only needs to be served once (thanksfully).