Cour de cassation; 2019-01-30; 17-28555
Decision by national courts in the field of European Union law — ECLI:FR:CCASS:2019:C100090
Date: 2019-01-30
Subject matter: Judicial cooperation in civil matters;Lugano Convention
Origin: France

82019FR0130(51)_ENG_SUMJURE
JURE summary
JURE summary
A business manager (hereinafter ‘the plaintiff’) sued his business partner (hereinafter ‘the defendant’) in Switzerland for various misappropriations. The defendant was convicted in Switzerland and ordered to pay legal costs in the amount of 36,000 Swiss francs. The judgment of conviction refers the plaintiff to the civil courts regarding his other claims.
The plaintiff filed an application for exequatur before the tribunal de grande instance de Bonneville (hereinafter ‘the Court of First Instance’). The Court of First Instance issued an order granting the enforceability of the Swiss judgment. The defendant appealed to the cour d’appel de Chambéry (hereinafter ‘the Court of Appeal’), which confirmed the order of the Court of First Instance. The defendant appealed to the Cour de cassation (hereinafter ‘the Supreme Court’).
The defendant argued that the appellate judgment disregarded the provisions of Article 509(2) of the CPC (1) referring to the new Lugano Convention (2), in particular its first article, in that the simplified recognition provided for by the latter does not apply in criminal matters. Moreover, compensation awarded by a criminal court not ruling on civil matters is not civil in nature.
The Supreme Court refused this argument and confirmed that the new Lugano Convention applies in civil and commercial matters, regardless of the nature of the court seized. It applies in this case to an award of legal fees to a victim before a criminal court hearing a civil claim. Therefore, this argument is unfounded.
The defendant claimed a violation of Article 34 of the new Lugano Convention in that the Court of Appeal refused to review the amount of costs awarded. The Court of Appeal argued that this amount depended on the sovereign appreciation of the Swiss judge, preserving the decision from a reaction of public international order and that it would be, moreover, complex for the French judge to assess the costs of a Swiss proceeding while uninformed about factual elements.
The Supreme Court overturned the appellate decision on this last point, confirming that the exercise of the judge’s office in fairness does not prevent the exequatur judge from reviewing whether the international public order has been violated. The Supreme Court referred the parties back to the Court of Appeal in Grenoble to rule on this argument.
(1) Code de procédure civile (Code of civil procedure).
(2) Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.