Cour de cassation; 2018-11-18; 19-12857
Decision by national courts in the field of European Union law — ECLI:FR:CCASS:2020:C100699
Date: 2020-11-18
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: France

82020FR1118(53)_ENG_SUMJURE
JURE summary
JURE summary
A French resident (hereinafter ‘the defendant’), acknowledged his debt towards a Swiss resident (hereinafter ‘the plaintiff’), by two private deeds dating from 1993.
After an unsuccessful seizure, the plaintiff obtained in 2002 the issuance of a deed of ‘default in property’ by the Office des poursuites et faillites of the Lausanne district.
In 2017, the plaintiff petitioned the president of the Tribunal de grande instance de Toulon (hereinafter ‘the Court of First Instance’) for an exequatur of this deed. An appeal was lodged before the Cour d’appel d’Aix-en-Provence (hereinafter ‘the Court of Appeal’), which refused to issue an enforcement order. The plaintiff appealed to the Cour de cassation (hereinafter ‘the Supreme Court’).
The defendant argued that the appeal was inadmissible on the grounds that the plaintiff had violated Article 40(2) of the new Lugano Convention (1). The Supreme Court held that the argument was not valid because the foreign party’s obligation to provide an address for service in the requested State could be carried out up to the date of rendering of the writ of execution and the plaintiff had a validly established domicile at her attorney’s office in a document submitted to the court.
The Court of Appeal refused to declare the act of 2002 enforceable on three grounds. The plaintiff refuted them.
The plaintiff claimed that the Court of Appeal violated Article 4 CPC (2), which prohibits the judge from distorting the writings submitted to him. The Court of Appeal held that the legal nature of the so-called ‘deed of default in property’ and of the aforementioned office of the Lausanne district are undefined, as the plaintiff did not provide any elements of foreign law. The Supreme Court agreed with this claim as the plaintiff had provided an extensive description of the Swiss legal system and a clear reference to Article 149 of the law of 1889 (3), providing a textual basis for qualifying the 2002 decision as an enforceable title within the meaning of the new Lugano Convention.
By analogy, the plaintiff also complained that the judge of appeal disregarded his office and violated Article 12 CPC by not investigating of his own motion and by all means whether the 2002 deed was a decision within the meaning of the new Lugano Convention. The Supreme Court also agreed with this claim.
Finally, the plaintiff complained that the Court of Appeal violated Article 16 CPC. The parties similarly referred to the provisions of the Lugano Convention (4). The appellate judge criticised the plaintiff for not having produced the documents required by Articles 53 to 55 of the new Lugano Convention, without inviting the parties to present their observations on the plea raised by the court on its own initiative. In so doing, the Supreme Court confirmed that the judgment disregarded the adversarial principle set out in Article 16 CPC.
Consequently, the Supreme Court quashed the judgment and sent the parties back to the same Court of Appeal, otherwise composed.
(1) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Code de procédure civile (French Code of civil procedure).
(3) La loi fédérale suisse du 11 avril 1889 sur la poursuite pour dettes et la faillite (Swiss Federal Debt Enforcement and Bankruptcy Law).
(4) Convention on jurisdiction and the enforcement of judgments in civil and commercial matters – Done at Lugano on 16 September 1988.