Cour de cassation 1ère Chambre civile; 2023-03-22; 1re Civ., 22 mars 2023, pourvoi n° 21-25.336
Decision by national courts in the field of European Union law — ECLI:FR:CCASS:2023:C100198
Date: 2023-03-22
Subject matter: Judicial cooperation in civil matters
Origin: France

82023FR0322(51)_ENG_SUMJURE
JURE summary
JURE summary
The case is between Ajilex, a company domiciled in France (hereinafter ‘the plaintiff’), and Bank Tejarat Iran, a company incorporated under Iranian law (hereinafter ‘the defendant’). The plaintiff complained that the cour d’appel de Paris (hereinafter ‘the Court of Appeal in Paris’) ruled that it should pay damages to the defendant for a loss suffered.
The proceedings began in Italy, before the Court of Bologna (hereinafter ‘the Court of First Instance in Bologna’), which issued a decision, with provisional enforcement, against the defendant and for the benefit of a third company placed in bankruptcy.
The Registrar of the Tribunal de Grande Instance de Paris (hereinafter ‘the Court of First Instance in Paris’) issued a declaration of enforceability of the Italian decision on the basis of Articles 38 et seq. of the Brussels I Regulation (1). The defendant lodged an appeal against the declaration of enforceability, which was rejected by the cour d’appel de Paris (hereinafter ‘the Court of Appeal’). The bankrupt company then proceeded to seize the assets of the defendant's Paris subsidiary and subsequently requested conversion into an attachment on bank accounts (‘saisie-attribution’).
The defendant lodged an application contesting the request for conversion into an attachment on bank accounts. In the meantime, the Court of First Instance in Bologna suspended the provisional execution of its initial decision. Following this, the French judge declared the defendant's request to dispute the conversion inadmissible, due to the late introduction of the request by the bailiffs. The Court of Appeal then rejected the stay of execution and released the funds requested by the bankrupt company.
However, the Court of Cassation (hereafter ‘the Supreme Court’) annulled this appellate decision. The referral court of appeal revoked the declaration of enforceability of the Italian decision.
As a result, the defendant sued the plaintiff, the successor to the bailiff’s firm, for liability. The core issue was to establish the existence of fault committed by the bailiffs during the initial proceedings. The Court of Appeal recognised the existence of a fault and ordered the plaintiff to pay damages.
The plaintiff appealed on various grounds, arguing that there had been no fault on the part of the bailiffs, and that there had been no prejudice, including loss of opportunity, insofar as the defendant had been successful in the original proceedings.
The Supreme Court pointed out that, under the terms of Article 38 of the Brussels I Regulation, as interpreted by the Court of Justice of the European Union, the enforceability of a judgment in the State of origin is a condition for its enforcement in the State addressed. In this respect, recognition has the effect of attributing to decisions the authority and effectiveness they have in the State of origin. Thus, when a judgment is enforced, it cannot be granted rights that do not belong to it in the Member State of origin, or effects that a judgment of the same type given directly in the Member State addressed would not produce.
The Court of Appeal correctly held that the suspension of the provisional enforcement of an Italian decision had the effect of depriving, ipso jure, of any legal basis, the recognition in France of the enforceability of that decision. Consequently, the Court of Appeal correctly deduced that the defendant had lost a real and serious chance of having its request for release of the seizure granted, due to the late notification of the summons by a bailiff, as noted by the Court in the initial case. Thus, the defendant has suffered a current and certain prejudice, within the meaning of Article 1382 of the code civil (2), in its pre-2016 wording.
Since the fault had been committed and the prejudice established by the Court of Appeal, the Supreme Court quashed the plaintiff's appeal, thus confirming the lower decision.
(1) Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
(2) Code civil (Civil Code).