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Quand contester l'impartialité des arbitres ?
Olivier Vibert
During the enforcement procedure on the French territory, two questions to the Cour de cassation were raised:
- Was the debtor a consumer and therefore could the Italian company use the ricorso per decreto ingiuntivo (Italian order for payment procedure) or did the French courts have jurisdiction using the jurisdictional exception for consumers of article 15 of EU regulation 44/2001 ?
- Was the service of the order for payment to the debtor correctly made and therefore could the enforceability of the order for payment in France be declared ?
Cour de cassation, 1st civil Chamber, April 12, 2012, decision number 10-23023
This decision concerned the execution of an Italian order for payment on the French territory.
An Italian company had made some house renovation work for a French client in the South of France, near Nice. The Italian company had established an invoice for this work but the Client hadn't paid the invoice.
The Italian company wishing to collect its debt on the French owner undertook litigation in Italy. The Italian company rather than suing the French client in France, preferred the Courts of San Remo.
The Italian company used a special procedure called the “ricorso per decreto ingiuntivo” which could be translated as a request for an order for payment. The court of San Remo on the 9th of June 2008 gave right to the Italian company and ordered the debtor to pay.
The Italian decision had then notified by registered mail to the French individual on the 21st of June 2008.
A certificate was established by the Court of San Remo on the 9th of June 2008 in order to testify that the Italian decision was enforceable. This certificate had been issued according to article 54 of EU regulation 44/2001.
The Italian company then sought recognition before the French court of Nice in order to enforce the decision against the debtor.
The French court considered that the decision was enforceable and rendered a declaration of enforceability.
This decision was then served.
The debtor appealed from the declaration of enforceability.
The appeal court confirmed the first instance decision and declared enforceable in France the Italian order.
The debtor decided to bring the case before the French civil and commercial Supreme Court or Cour de cassation.
On the Italian jurisdiction,
Considering provisions 15, 16, 35 and 45 of EU regulation 44/2001 the debtor argued that the Court of appeal hadn't correctly determined whether the Italian court had jurisdiction.
The debtor considered that he should be qualified as a consumer. The Court of appeal refused to qualify the debtor as a consumer by simply stating that the contract concerned house renovation works.
Could the jurisdictional protection of a consumer be excluded simply by a reference to a real estate contract ?
The Cour de cassation overruled the Court of appeal's decision. The Appeal Court didn't correctly determine the jurisdiction. According to the Cour de cassation, the Court of appeal couldn't refuse to apply the jurisdictional exception for consumers by simply putting forward that the contract concerned house renovation works.
Even though the contract concerned the accomplishment of house renovation works the client could remain recognisable as a consumer.
On the validity of the notification by registered mail,
The Cour de cassation needed to answer a second argument.
The Client or debtor argued that the Italian hadn't been correctly notified. Court decisions must normally in France be served by a bailiff with certain requirements. EU regulation 393/2007 provides rules for the service of decisions within the E.U..
The debtor considered that the Italian decision hadn't been notified correctly.
The Court of appeal to declare the enforceability of the Italian decision in France held that:
- the Italian had been notified by registered letter, which has been confirmed by the judicial officer of the San Remo Court,
- the notification by registered letter is accepted by article 14 of Regulation 1393/2007,
- the Italian court had then issued a certificate of enforceability on the Italian territory.
The Cour de cassation overruled once more the decision of the Court of appeal.
For the Cour de cassation, the Court of appeal should have examined in details whether the notification of the Italian decision (order for payment) by registered mail had been made in sufficient time and in such a way as to enable the defendant to arrange for his defence.
The Cour de cassation in this decision made a strict application of article 34 §2 of EU regulation 44/2001.
“A judgment shall not be recognised:
(...)
2. where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;”
The Court of appeal, considering the application made to enforce the decision in France was obliged to review all conditions of article 34 of the EU regulation 44/2001.
If Article 14 authorizes a notification by registered letter such notification could raise questions. Article 7 provides that “The receiving agency shall itself serve the document or have it served, either in accordance with the law of the Member State addressed or by a particular method requested by the transmitting agency, unless that method is incompatible with the law of that Member State”.
The service therefore must respect the laws of the addressed Member State. In the present case, the service of the Italian decision needed to respect the laws of France. The Court of appeal needed to examine thoroughly whether the service was correct.
The French Supreme Court wants the French judges to examine if the service of the order is correct before ruling on the enforceability of the order on the French territory.
In the order for payment procedure, the validity of the notification of the order is vital. If the order isn't served correctly it cannot have any legal power. The order must also be served within a certain delay otherwise the effect of the order lapses. Until the order is served correctly the debtor remains within the faculty of forming an opposition.
In the present case the choice of notifying the order by simply a registered letter could be discussed. Notifying a decision by registered letter therefore means taking a risk if the service doesn't comply with the rules of the other Member state.
To avoid such difficulties it could seem preferable to use the direct service of article 15 or to use both the service by registered letter and the regular service by the receiving agency.
The case will therefore have to be examined once more by an appeal Court. It will be interesting to see how this case will end up.
Par Olivier VIBERT
Avocat au Barreau de Paris,
19 Avenue Rapp 75007 PARIS
Tel : (+33) 1 45 55 72 00
Fax : (+33) 1 47 53 76 14
olivier.vibert@ifl-avocats.com
- Was the debtor a consumer and therefore could the Italian company use the ricorso per decreto ingiuntivo (Italian order for payment procedure) or did the French courts have jurisdiction using the jurisdictional exception for consumers of article 15 of EU regulation 44/2001 ?
- Was the service of the order for payment to the debtor correctly made and therefore could the enforceability of the order for payment in France be declared ?
Cour de cassation, 1st civil Chamber, April 12, 2012, decision number 10-23023
This decision concerned the execution of an Italian order for payment on the French territory.
An Italian company had made some house renovation work for a French client in the South of France, near Nice. The Italian company had established an invoice for this work but the Client hadn't paid the invoice.
The Italian company wishing to collect its debt on the French owner undertook litigation in Italy. The Italian company rather than suing the French client in France, preferred the Courts of San Remo.
The Italian company used a special procedure called the “ricorso per decreto ingiuntivo” which could be translated as a request for an order for payment. The court of San Remo on the 9th of June 2008 gave right to the Italian company and ordered the debtor to pay.
The Italian decision had then notified by registered mail to the French individual on the 21st of June 2008.
A certificate was established by the Court of San Remo on the 9th of June 2008 in order to testify that the Italian decision was enforceable. This certificate had been issued according to article 54 of EU regulation 44/2001.
The Italian company then sought recognition before the French court of Nice in order to enforce the decision against the debtor.
The French court considered that the decision was enforceable and rendered a declaration of enforceability.
This decision was then served.
The debtor appealed from the declaration of enforceability.
The appeal court confirmed the first instance decision and declared enforceable in France the Italian order.
The debtor decided to bring the case before the French civil and commercial Supreme Court or Cour de cassation.
On the Italian jurisdiction,
Considering provisions 15, 16, 35 and 45 of EU regulation 44/2001 the debtor argued that the Court of appeal hadn't correctly determined whether the Italian court had jurisdiction.
The debtor considered that he should be qualified as a consumer. The Court of appeal refused to qualify the debtor as a consumer by simply stating that the contract concerned house renovation works.
Could the jurisdictional protection of a consumer be excluded simply by a reference to a real estate contract ?
The Cour de cassation overruled the Court of appeal's decision. The Appeal Court didn't correctly determine the jurisdiction. According to the Cour de cassation, the Court of appeal couldn't refuse to apply the jurisdictional exception for consumers by simply putting forward that the contract concerned house renovation works.
Even though the contract concerned the accomplishment of house renovation works the client could remain recognisable as a consumer.
On the validity of the notification by registered mail,
The Cour de cassation needed to answer a second argument.
The Client or debtor argued that the Italian hadn't been correctly notified. Court decisions must normally in France be served by a bailiff with certain requirements. EU regulation 393/2007 provides rules for the service of decisions within the E.U..
The debtor considered that the Italian decision hadn't been notified correctly.
The Court of appeal to declare the enforceability of the Italian decision in France held that:
- the Italian had been notified by registered letter, which has been confirmed by the judicial officer of the San Remo Court,
- the notification by registered letter is accepted by article 14 of Regulation 1393/2007,
- the Italian court had then issued a certificate of enforceability on the Italian territory.
The Cour de cassation overruled once more the decision of the Court of appeal.
For the Cour de cassation, the Court of appeal should have examined in details whether the notification of the Italian decision (order for payment) by registered mail had been made in sufficient time and in such a way as to enable the defendant to arrange for his defence.
The Cour de cassation in this decision made a strict application of article 34 §2 of EU regulation 44/2001.
“A judgment shall not be recognised:
(...)
2. where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;”
The Court of appeal, considering the application made to enforce the decision in France was obliged to review all conditions of article 34 of the EU regulation 44/2001.
If Article 14 authorizes a notification by registered letter such notification could raise questions. Article 7 provides that “The receiving agency shall itself serve the document or have it served, either in accordance with the law of the Member State addressed or by a particular method requested by the transmitting agency, unless that method is incompatible with the law of that Member State”.
The service therefore must respect the laws of the addressed Member State. In the present case, the service of the Italian decision needed to respect the laws of France. The Court of appeal needed to examine thoroughly whether the service was correct.
The French Supreme Court wants the French judges to examine if the service of the order is correct before ruling on the enforceability of the order on the French territory.
In the order for payment procedure, the validity of the notification of the order is vital. If the order isn't served correctly it cannot have any legal power. The order must also be served within a certain delay otherwise the effect of the order lapses. Until the order is served correctly the debtor remains within the faculty of forming an opposition.
In the present case the choice of notifying the order by simply a registered letter could be discussed. Notifying a decision by registered letter therefore means taking a risk if the service doesn't comply with the rules of the other Member state.
To avoid such difficulties it could seem preferable to use the direct service of article 15 or to use both the service by registered letter and the regular service by the receiving agency.
The case will therefore have to be examined once more by an appeal Court. It will be interesting to see how this case will end up.
Par Olivier VIBERT
Avocat au Barreau de Paris,
19 Avenue Rapp 75007 PARIS
Tel : (+33) 1 45 55 72 00
Fax : (+33) 1 47 53 76 14
olivier.vibert@ifl-avocats.com
