The Conservatory Measures Under French Law

An important aspect of international arbitration and internatioal law is the availability of interim and conservatory relief in support of the arbitral or judicial process. This relief includes injunctions, attachments designed to promote the enforceability of a subsequent award, and orders preserving evidence. Here are a complete memorandum of the measures a company can request before a French court under French Law.

Two categories of conservatory measures exist under French Law :

On one hand, conservatory measures such as a “conservatory beslag” shall be asked before the

enforcement judge (juge de l’exécution). (I).

On the other hand, some interim conservatory measures may be ordered by the court of summary

jurisdiction (juge des référés). The purpose of these interim measures is to prevent from an imminent

damage or to stop a manifestly unlawful behaviour. E.g : reparation to prevent from a danger, expulsion

of a lodger, payment of a retainer etc. (II).

I. THE CONSERVATORY MEASURES PRONOUNCED BY THE ENFORCEMENT JUDGE

A. Proceedings Applicable to All Conservatory Measures

1. Competent judge

2. A title

3. Proceedings for court authorization

4. Implementation of the measure

5. Conversion

6. How to defeat a conservatory measure

B. Substantive Requirements for All Conservatory Measures

C. Attachments (or Conservatory Seizures)

1. Definition

2. Effects

3. The different kinds of attachments

D. Judicial Securities

1. Requirements

2. Area

3. Effects

4. Proceedings

II. THE INTERIM CONSERVATORY MEASURES PRONOUNCED BY THE COURT OF SUMMARY

1. Emergency measures

2. Protective measures

3. Consequences

4. Competent judge & proceedings

I. THE CONSERVATORY MEASURES PRONOUNCED BY THE

ENFORCEMENT JUDGE

Articles L 511-1 to L 533-1 of the Enforcement Civil Procedure Code (ECPC)

A. Proceedings applicable to all conservatory measures

B. Substantive requirements for all conservatory measures

C. Attachments (or conservatory seizures)

D. Judicial Securities

A. Proceedings Applicable To All Conservatory Measures

1. Competent judge

1.1. The enforcement judge alone (usually the president of the “Tribunal de Grande Instance”) is

competent to authorize conservatory measures. A significant exception is nevertheless established in

favor of the president of the Commercial Court, if the measure is requested before any trial and if it tends

to the protection of a commercial claim. (Art. L. 511-3 of the Enforcement Civil Procedure Code).

However, please note that even in the case of art. L 511-3, the enforcement judge is also competent.

1.2. European law :

The Brussels II bis regulation n°44-2001 provides that the competent judge to order conservatory

measures is the judge of the defendant’s residence.

1.3. International law :

Article R. 511-2 of the Enforcement Civil Procedure Code provides that the "competent judge to authorize

a conservatory measure is the judge of the debtor’s residence".

However, the “Cour de Cassation” ruled that if the assets are located in France, and the debtor does not

have a residence in France, the French judge is competent to order or appreciate a conservatory

measure (Civ 2nd, Nov 9th, n°04-19138).

2. A title

The writ of execution or any other assimilated title is a condition for the realization of a provisional

measure without the intervention of the judge of the execution. Such titles are listed at article L 511-2

of the ECPC. In addition, jurisprudence considers that an arbitral award without exequatur may exempt

the applicant to seek authorisation (Civ. 2nd, Oct 12th, 2006,no 04-19.062).

Otherwise, the applicant must seek court authorization to perform the measure.

3. Proceedings for obtaining court authorization

Where it must be obtained, judicial authorization is "made by motion" (“une requête”) (ECPC Art. R. 511-

1). The judge then issues an order. Assuming he does not grant the application, the applicant has the

right to appeal the refusal.

The main advantage of the motion is that it is an “ex parte” procedure. That means that the debtor is not

heard before the court. This is to prevent the dissipation of the assets by the debtor for the purpose of

evading its obligations toward the creditor. However, the judge may also decide that the matter will be

heard in “inter partes” proceedings, i.e., in the presence of the debtor (ECPC Art R.511-5).

4. Implementation

If the creditor has a decision or title as per Art R. 511-1, he may directly request a bailiff who will make the

seizure. If he sought for court authorization, he has 3 months after the favourable decision to proceed

with the seizure by bailiff.

5. Conversion

Conservatory measures should be quickly converted to such measures. Either the creditor already

has an enforceable title and may at any time directly use execution measures, or he does not yet and

must, within one month following the execution of the measure, introduce a procedure allowing to get one

(ECPC L. 511-4). Otherwise, the measure is null and void. Most of the time, that means that the creditor

will have to assign the debtor before a judge. Other enforceable titles are : an arbitral awards declared

enforceable, a foreign judgement, extracts from a mediation signed by the parties.

6. How to defeat a conservatory measure

An order of conservatory measure may be defeated in two ways. Firstly, the debtor may request the judge

to withdraw the ordinance. The decision of the judge to withdraw the measure can be founded on

elements brought to him after the initial decision to order the measure (Civ. 2nd, Jan 12nd 1994, no 92-

14.605). The withdrawal can be total or partial. It is the creditor who has to prove that all of the conditions

(see point B below) for the conservatory seizure of assets have been met.

Secondly, the debtor may also ask the judge for the reduction or the substitution of the measure by

another one (ECPC L. 512-2, al. 2)

B. Substantive Requirements For All Conservatory Measures

1. Please note that all conservatory measures under the Enforcement Civil Procedure Code must fulfil the

following requirements. However, specific rules apply to each measure. The specifics will be briefly

overviewed in point C below.

2. Article L. 511-1 of the ECPC provides that “any person whose claim appears to be founded in

principle may apply to the judge for authorisation to practice a precautionary measure against the

property of his debtor (…) if it demonstrates circumstances likely to threaten the recovery”.

3. Obtaining such measures is therefore subject to two conditions :

 A claim appearing to be founded

 Circumstances likely to threaten the creditor’s right

4. First requirement: a claim appearing to be founded:

4.1. The claim shall only appear to be founded in its principle. A well founded claim is not necessarily a

determined certain claim (Cass. Com Dec. 15th 2009; n°08-19.432). The control of the judge is therefore

strictly limited (Cass. com., Oct. 9th 2001, no 98-18.487, Bull. civ. IV, no 164).

4.2. Examples of claims appearing to be founded :

 notorious insolvability of the debtor (Cass. Com, May 22nd 1979 n°78-11.782)

 the notification of a procedure for tax adjustment (Cass. Civ 1st., May 13, 1986, no 85-10.669,

Bull. civ. I, no 129, D. 1986)

 claim not due yet (Cass. 3e civ., Apr 19th, 1977, no 75-14.236, Bull. civ. III, no 169)

 As a result, a conditional or even possible claim can perfectly justify authorization to serve a

conservatory measure (Cass. Com. Oct, 21st 1964).

5. Second requirement: Circumstances likely to threaten the creditor’s right.

5.1. This condition means that the claimant is entitled to request a conservatory measure if a serious

doubt exists on the capacity of the debtor to fulfil his obligations.

5.2. Examples of circumstances likely to threaten the creditor’s right :

 notorious insolvability of the debtor (Cass Com May 22nd,1979 n°78-11.782)

 financial difficulties of the caution (CA Paris Feb 11th, 1999 n°99-20192)

 silence of the debtor, does not respond to letters (CA Colmar June 7th, 1993, BICC Oct 1st 1993)

6. There are two kinds of conservatory measures under the Enforcement Civil Procedure Code :

 Art. L 521-1 et seq.: conservatory seizures (or attachments)

 Art. L 531-1 et seq.: judicial securities

C. The Conservatory Seizure or Attachment (Conservatory Beslag)

1. Definition

The attachment is an ex parte proceeding (an ‘ordonnance sur requête’). An attachment may be used

against movable assets, whether material, e.g., a television set, or immaterial, e.g., patents, monies on a

bank account and claims of the debtor against third parties. An attachment can be served to third parties

in possession of the debtor’s assets.

2. Effects

The aim of an attachment is to prevent the debtor from disposing of his assets. The assets are frozen

and cannot be removed from the care and/or estate of the debtor and/or third party (ECPC Art. L.141-2

and L.521-1).

3. The different kinds of attachments under French law

A brief summary of each type of conservatory seizure available in France. Specific rules apply to each of

these legal instruments.

3.1. Attachment of movables

All movables belonging to the debtor may be subject to seizure (Art. L. 522-1 and R. 511-1). Exceptions

exist. For example, movables necessary to the debtor’s work are not seizable.

The goods can be seized from the hands of the debtor, or a third-party. Upon the intervention of the

bailiff, the goods are placed under control of justice and cannot therefore be the subject of any legal

transaction or any physical movement. The debtor can only use the movables.

After conversion (as seen at point A.5.), the creditor can sell the seized goods if the debtor does not fulfil

his obligations (ECPC Art R. 522-8).

3.2. Conservatory seizure of money

Only claims involving a sum of money may be seized under article L. 523-1 of the ECPC. Contrary to the

effect of Attachment of movables, where the debtor can use the goods, a Attachment of money disable

him to use it.

3.3. Attachment of shareholders rights and securities

Under this procedure, the assets are seized from the hands of a third party: the issuing entity (eg a

company).

Similarly to the seizure of movables, the creditor, after conversion (as seen at point A.5.), can sell the

seized securities or shareholders’ rights if the debtor does not fulfil his obligations (ECPC Art R. 522-8).

3.4. Other specific Attachments

Certain assets are governed by specific regulations, such as road motors vehicles and assets located

in the debtor’s bank safe. Furthermore, the attachment of aircraft and ships is governed by specific

legislation whereas certain rules of the ECPC may be applicable when an issue is not covered by the

specific legislation.

D. Judicial Securities

1. Requirements:

Judicial securities are conservatory measures. Therefore, the claimant may request such measure if he

relies on a claim that seems well-grounded as a matter of principle, and circumstances that are likely

to endanger the recovery of the debt (see above, point B).

2. Area:

Judicial securities may be used against real property, e.g. a house, business, and securities and shares

(ECPC art L.531-1 and R.531-1).

3. Effects of a judicial security:

Contrary to attachmentss/ attachments, the assets subject to a judicial security remain available (ECPC

Art L.531-2). However, a judicial security entitles the creditor to a right over the assets, which is

enforceable against third parties after proper registration. The creditor has the same rights as the holder

of a legal or statutory security, such as the preference right (“droit de préférence”) and the resale right

(“droit de suite”). Therefore, in the case of the sale of the assets by the debtor, the creditor is entitled to

receive part of the sale price.

4. Proceedings:

The mechanism relating to the implementation of judicial securities is a two-steps procedure : a temporary

registration followed by a definitive registration.

4.1. The temporary registration

Protection will result from the performance of a temporary registration. The temporary registration protects

the creditor for three years (ECPC Art. R. 532-7). A judicial security is enforceable against third

parties from the date of completion of the registration formalities. Once the registration is

accomplished, the creditor must notify the debtor of the measure.

4.2. The definitive or final registration

The creditor may introduce a lawsuit that will allow him to obtain an enforcement order. If this is the case ,

he shall be entitled with a definitive registration. A creditor who has already an enforcement title is not

obliged to ask a judge. He may directly accomplish the formalities for the definitive registration. This final

registration will protect the creditor during a period of 10 years.

II. THE INTERIM CONSERVATORY MEASURES PRONOUNCED BY THE COURT OF

SUMMARY JURISDICTION (JUGE DES RÉFÉRÉS)

Articles 808, 809, 812, 872, 873 of the CPC (Civil Procedure Code)

1. Emergency measures : (Art. 808 & 872 CPC)

A party can ask the judge to issue an interim measure, if the party demonstrates that :

 An emergency situation exists and ;

 The relief sought is not seriously questionable

The respondent bears the onus of showing that a serious objection to the claim exists.

2. Protective measures and measures aimed at restoring the status quo: (Art. 809 & 873 CPC)

Art. 809 al.1 provides that they can be ordered “even when confronted with a serious challenge” as long

as they seek to “avoid an imminent damage” or to put an end to “a manifestly illegal nuisance”.

Please beware that it is not possible to list the different types of measures that a judge can order under

articles 808 et seq., since it can be any measure whose aim is to prevent the claimant from the different

hypotheses of the said-articles.

3. Consequences

If these requirements are satisfied, the claimant may obtain interim remedies from the judge.

Where the existence of an obligation is not seriously disputed, the judge may award a money order to

the creditor or order the performance of the obligation (articles 809, al.2 and 873, al.2 of the Civil

Procedure Code).

4. Competent judge & Proceedings

4.1. The competent judicial authority is usually the President of the Tribunal de Grande Instance or the

President of the Commercial Court if the dispute is of a commercial nature. In an international arbitration

involving foreign parties, the competent court is usually the court in the jurisdiction where the interim

measure is to be ordered.

4.2. . Only one member of the court hears the action and he or she rules in a special capacity (as juge

des référés) reserved for the consideration of urgent matters. Please note that once the arbitral tribunal

is constituted, the power to order conservatory or interim measures moves to the arbitral tribunal.

4.3. It is possible to ask for such measures without any debate with the other party and therefore

benefit from the element of surprise (Art. 812 CPC). Apart from this specific case, all parties must be

heard.

4.4. European litigations:

The Brussels II bis regulation n°44-2001 provides that the competent judge to order conservatory

measures is the judge of the defendant’s domicile.

Article 31 provides that : “Application may be made to the courts of a Member State for such provisional,

including protective, measures as may be available under the law of that State, even if, under this

Regulation, the courts of another Member State have jurisdiction as to the substance of the matter.

4.5. International litigation:

An option is available to the applicant. He may seek the measure before a French judge if the main trial

shall be heard before a French court, or if the place where the measure is to be executed is in France

(Cass. Civ. 2nd, July 10th, 1991 Bull. Civ. II, n°223)

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