This is the second of a series of posts which will present how the issue of the applicable law to the time limit to enforce or recognise foreign judgments is addressed in comparative private international law. The first post presented the view of the Swiss federal tribunal.
In a judgment of 11 January 2023, the French supreme court for private and criminal matters (Cour de cassation) confirmed its traditional position by ruling that the French 10 year time limit applies to the enforcement of foreign judgments in France and that foreign time limits may indirectly be taken into consideration by denying standing to the party seeking a declaration of enforceability.
Time Limit to Enforce Foreign Judgments
For more than 30 years, the Cour de cassation has ruled that the enforcement of foreign judgments in France is governed by the applicable French time limit. For years, there was no specific time limit applicable to the enforcement of judgments, and French courts would thus apply the general time limit of 30 years. Since 2008, a specific rule was included in article L 111-4 of the Code of Civil Enforcement Proceedings providing for a time limit of 10 years.
In order to justify the application of French law to the issue, the Cour de cassation has consistently held that the subject matter of the time limit was the enforcement of a judgment. In other words, the issue was identified as concerned with a particular effect of the judgment, namely enforcement.
In a judgment of 4 November 2015, the court clarified that the starting point of the time limit was the date of the French order declaring the foreign judgment enforceable in France. This has been convincingly interpreted by French scholars as meaning that the subject matter of the time limit was, in an international context, the enforcement of a French judgment rather than a foreign one, i.e. the exequatur order. A possible rationale for such a proposition is that, under the French common law of judgments, a foreign judgement cannot, strictly speaking, be enforced. Only a French exequatur order can. In other words, the enforcement of foreign judgments in France is not, strictly speaking, a problem of private international law. It is a matter a domestic enforcement (of a French exequatur judgment).
This approach works fine under the French common law of judgments. But it is unclear whether it works as under the European law of judgments. In the 2023 judgment, the Cour de cassation repeated the traditional rule in the context of the Lugano Convention. Under the Lugano Convention, foreign judgments can only be enforced on the basis of a declaration of enforceability. Is it exactly the same as an exequatur order under the common law of judgments of the Member States? It seems that the Cour de cassation thought so.
All this begs the question of the time limit applicable to the enforcement of a judgment under the Brussels I bis Regulation. In the absence of any declaration of enforceability, it is hard to consider that the foreign judgment is not enforced as such.
The judgment of 11 January 2023 also confirms that the Cour de cassation would still take into account the time limit of the country of origin of the judgment to assess whether the judgment creditor would have standing to seek enforcement of the judgment in France.
The reasoning of the Cour de cassation starts from the premice that the foreign judgment may only be declared enforceable in France if it is enforceable in its country of origin. As a result, a judgment creditor of a foreign judgment time barred in its country of origin would lack standing to seek a declaration of enforceability in France, as the foreign judgment would not be enforceable in its country of origin.
The consequence of this rule is that, at least until the foreign judgment has been declared enforceable in France, it is, in effect, also subject to the time limit of its country of origin, to the extent to such time limit would affect its enforceability.
The case leading to the judgment of 11 January 2023 was concerned with the enforcement in France of a Swiss judgment. The Lugano Convention applied. The Cour de cassation does not underscore that peculiarity, which does not seem to be relevant for the court. The issue arises, however, whether the proposition that an action seeking a declaration of enforceability under the Lugano Convention might be found inadmissible comports with the rule that the only grounds for denying such declaration are the limited grounds found in Art 34 of the Convention (Case C-139/10, Prism Investments). True, the Cour de cassation does not rule that it would dismiss the application on the merits, but rather that it would find it inadmissible. Is the issue of admissibility governed by the law of the Member States?
Or should the issue of lack of enforceability of the foreign judgment be addressed at the stage of enforcement of the declaration of enforceability (and the foreign judgment)? This is what the Swiss federal Tribunal ruled in its judgment of 2 August 2022.