Cour de cassation; 2018-12-19; 17-25941
Decision by national courts in the field of European Union law — ECLI:FR:CCASS:2018:C101222
Date: 2018-12-19
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: France

82018FR1219(51)_ENG_SUMJURE
JURE summary
JURE summary
A former husband (hereinafter ‘the defendant’) was convicted in Switzerland for the non-payment of alimony to his former wife (hereinafter ‘the plaintiff’), in a judgement of release (decision de mainlevée) issued in May 1996. The new Lugano Convention (1) entered into force on 1 January 2010. The plaintiff requested an enforcement order in France in November 2015 on the basis of this Convention. The Cour d’appel de Dijon (hereinafter ‘the Court of Appeal’) granted the plaintiff’s request. The defendant appealed in cassation against this judgment.
The Cour de Cassation (hereinafter ‘the Supreme Court’) quashed the appellate judgment, stating that it infringed Article 63 and Article 69(5) of the new Lugano Convention, thereby depriving the Swiss judgment of enforceability in France. These articles lay down the principle that recognition and enforcement of a decision may be granted based on the Convention, provided that the original decision is rendered after its entry into force. Thus, the plaintiff’s argument that the 1996 Swiss decision meets all requirements set by Articles 38, 53 and 54 of the new Lugano Convention is void, as it does not obey the above-mentioned precondition, since the decision dates from before 2010.
The Supreme Court notes two other legal errors made by the Court of Appeal that resulted in the same disregard of Article 38(1) of the new Lugano Convention. The first stems from the refusal of the Court of Appeal to examine the defendant’s argument that the Swiss decision of 1996 was no longer enforceable because of the decanal statute of limitations in Switzerland and approaching the issue from the sole standpoint of the exception of public policy, French in this instance, contained in the Convention. The second stems from the refusal by the same court to examine the defendant’s claims, which remained without explanation by the plaintiff, that the decision of May 1996 does not serve as an enforceable order as it was rendered during a procedure for enforcement of a previous decision granted in 1985. In doing so, the Court of Appeal deprived its decision of a legal basis.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.