Cour de cassation; 2018-04-11; 16-24653
Decision by national courts in the field of European Union law — ECLI:FR:CCASS:2018:C100409
Date: 2018-04-11
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: France

82018FR0411(51)_ENG_SUMJURE
JURE summary
JURE summary
A Dutch company Heerema Zwijndrecht (hereinafter ‘the plaintiff’) obtained a writ of execution in the Netherlands condemning, jointly and severally and with provisional execution, the State of Iraq, and the Central Bank of Iraq. The plaintiff obtained the exequatur of this title in France and was authoriSed on this basis to register a judicial mortgage on a property located in France. The land registry refused to publish the order for seizure of the property, arguing that the said property belongs to the Swiss company Logarchéo SA.
As a result, the plaintiff sued the State of Iraq (hereinafter ‘the defendant’) before the tribunal de grande instance de Grasse (hereinafter ‘the Court of First Instance’) to have it recognised as the owner of the property. The defendant raised a plea of lack of jurisdiction in favour of the Swiss courts. The first instance decision dismissed this argument. The defendant appealed to the cour d'appel d'Aix-en-Provence (hereinafter ‘the Court of Appeal’), which confirmed the jurisdiction of French courts. The defendant appealed to the Cour de cassation (hereinafter ‘the Supreme Court’).
The parties disagreed as to the nature of the issue at hand. The defendant claimed that the case to declare him the owner of a property held by a Swiss company amounts to a ruling on the fictitious nature of that company. He invoked Article 22(2) of the new Lugano Convention (1), which provides that the assessment of the fictitiousness of a company whose registered office is located in the territory of a Member State falls within the exclusive jurisdiction of the courts of that State. The defendant added that the French courts should of their own motion decline jurisdiction under Article 25 of the same Convention.
The Supreme Court agreed with the opposing view based on Article 22(1) of the new Lugano Convention, which provides that in matters of rights in rem in immovable property, only the courts of the State where the property is situated have jurisdiction. Since the property is located in France, the French courts have jurisdiction. The Supreme Court confirmed that the Court of Appeal did not err in law by deducing that the French judge was competent to rule on the status of the owner insofar as this does not necessarily imply an assessment of the fictitiousness of the Swiss company.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.