French Court Denies Enforcement for Lack of Service of Article 53 Brussels I bis Certificate

In a judgment of 28 January 2025, the Court of Appeal of Grenoble (France) ruled that a Luxembourg judgement could not be enforced in France in the absence of service of an Article 53 Brussels I bis certificate on the debtor, as it was not satisfied that the foreign judgment was enforceable.

Background

A Luxembourg bank had successfully sued in a Luxembourg court a borrower who would not reimburse a loan of 2.7 million Euros. The reimbursement of the loan was guaranteed by a mortgage over a property situated in the French Alps, where the borrower was likely a resident.

In 2018, the Luxembourg district court issued a judgment ordering the borrower to pay 1.8 million plus interest.

In 2023, the bank sought to enforce the judgment by attaching a French bank account of the borrower for an amount 2.6 million Euros. The borrower challenged the validity of the attachment in a French court.

First Instance Jugdment

Before the French first instance enforcement court (Juge de l’exécution du Tribunal judiciaire de Vienne), the lawyers of the borrower made a number of arguments, including that certain clauses of the contract were unfair and that the borrower being a customer, the jurisdiction clause in the contract was invalid and the foreign court lacked jurisdiction. These arguments were dismissed.

More interestingly, the lawyers insisted that no Article 53 Brussels I bis Certificate was produced, and even less served on the defendant.

The court also dismissed the argument by ruling that

1. the borrower knew of the judgment, since the bank had carried another enforcement measure over its property two years earlier, and
2. Article 53 does not expressly provide for an obligation to serve the certificate.

Clearly, the court did not master the details of the Brussels I bis Regulation (including, in particular, the existence of Article 43, which mandates the service of the certificate), that it probably rarely applies.

From a policy perspective, however, the intuition of the court was that, at this stage, service of the certificate (and indeed its existence) was a purely formal requirement which served no purpose. There was no need to inform the debtor of the fact that the creditor sought to enforce its judgment in France: it has already done so two years before. And a French enforcement officer did not really need any of the information contained in the certificate to enforce a Luxembourg judgment, which is identical to a French judgment.

The debtor appealed to the Court of Appeal of Grenoble.

Court of Appeal Judgment

The Court of Appeal allowed the appeal on the ground that the Article 53 certificate had not been served on the defendant.

The Court found that an Article 53 certificate had been issued by a Luxembourg court in 2018, but that the said certificated had never been served on the defendant.

The Court noted that Article 43 of the Brussels I bis Regulation does not indicate what the consequence of lack of service of the certificate is, but ruled that the sanction of lack of service could be deduced from the obligation of the creditor to show that the foreign judgment was enforceable in the country of origin, and that this obligation could not satisfied in the absence of service.

As a result, the Court concluded, the creditor was unable to demonstrate that the Luxembourg judgment was enforceable in Luxembourg, and thus that it was enforceable in France.

Interestingly enough, the Court introduced the following distinction:

• Late service of the Article 53 certificate cannot possibly impact the validity of enforcement measures carried out in the requested State, because the Brussels I bis Regulation does not govern enforcement per se.
• Lack of service of the Article 53 certificate is different, however, because, the Court ruled, it amounts to a lack of existence of said certificate. In the absence of a certificate, the creditor cannot show that the foreign judgment was enforceable in the Member State of origin. As enforceability of the foreign judgment is a requirement for its enforcement under the Brussels I bis Regulation, any enforcement measure carried out on the basis of this judgment should be invalidated.

The Court ultimately lifted the attachment carried out by the creditor over the bank account.

Assessment

Poor reasons

There are a number of logical flaws in the reasoning of the court.

The first is that the Court recognises that the Brussels I bis Regulation does not govern enforcement per se, as repeatedly held by the CJEU, but eventually rules that lack of service in violation of Article 43 can result in the invalidation of an enforcement measure.

The second is the proposition that lack of service of the certificate amounts to the inexistence of the certificate. Even from a French domestic procedural perspective, it is hard to find any basis for such a intellectual shortcut.

The third is that late service should be treated differently than lack of service. Again, the origin of this distinction is unclear.

Interesting questions

The case, however, raises two interesting questions.

The first is whether the existence of the certificate is a requirement for its enforcement in other Member States.

Article 42(1) provides that

For the purposes of enforcement in a Member State of a judgment given in another Member State, the applicant shall provide the competent enforcement authority with (…) b) the certificate issued pursuant to Article 53 …

Does this rule establish a requirement for enforcement, or is it merely a rule aimed at facilitating the intervention of enforcement authorities? There are not many differences between a French and a Luxembourg judgment, and one could understand that a French huissier (recently renamed commissaire de justice) could directly enforce a Luxembourg judgment without any of the information provided in the certificate. If the huissier enforces the judgment without a certificate, is this a ground for applying for a refusal of enforcement? Certainly, it does not appear in the list of Article 45.

The second interesting question is whether lack of service of the certificate should have any consequence. It could have been provided to the enforcement authority only, and thus satisfy Article 42(1). Again, it is hard to see how this violation of Article 43 could be sanctioned. Clearly, contrary to what the Court of Appeal of Grenoble rules, lack of service of the certificate has no impact on its enforceability in the country of origin, which is all what Article 39 requires for being enforceable in other Member States. And lack of service of the certificate is not a ground for applying for refusal of enforcement under Article 45.