In France, the two main actors of enforcement are the judicial officers and the judge of enforcement. Provided with a enforceable title which fulfils the conditions of its enforcement (see sheet 1), the creditor can approach the authorised judicial officer for the implementation of the enforcement measure. In case of difficulties or dispute arising on the occasion of implementation of this compulsory enforcement measure, the judge of enforcement will enter the scene.

Judicial officer

The judicial officers are public officials (i.e. they establish official deeds which can be questioned only by way of forgery).

Moreover, judicial officers are ministerial officials (i.e. independent professionals who exercise one (or several) public service functions under authorisation of the State). They are independent professionals, who do not receive any orders from a government body, but whose activity is controlled - a posteriori – by their supervisory ministry (Ministry of Justice) represented by the Public Prosecutor.

The exercise of the profession of a judicial officer is strictly controlled by a set of legislative and regulatory texts, constituting a statute, which defines the activities of the profession as well as how these activities are carried out. The main text which defines the statute of the profession is the order n°45-2592 of November 2nd, 1945.

1. What are the judicial officer’s activities?

The different fields of activities of the judicial officer are defined by the 1^st article of the order no. 45-2592 dated 2 November 1945 concerning the status of the judicial officers.

This text differentiates between the main activities and the related activities.

Main activities

The two types of main activities of the judicial officer must be distinguished: those exercised monopolistically and those that they share with other professions.

Monopolistic activities

The 1st article of the order dated 2 November 1945 provides that judicial officers alone can carry out the following activities:

• service of documents;
• enforcement of judgements.

The inference of this monopoly is that, without exception, the judicial officers are liable to cooperate when legally required. The exception consists of prohibition to draw up a formal document for one’s parents and relatives by marriage.

Service of Proceedings

The service (“notification”) is the formality by which a person is officially informed of the contents of an act, or by which this person is given an advance notice, or by which he is summoned to appear before of a court, or finally, by which he is given knowledge of the contents of a decision of justice.

The service made by a process through a judicial officer (“signification”) consists of the judicial officer notifying the recipient of a document.

In certain cases, the law enforces this particular mode of service (summons, service of the judgment and order).

In all cases, even when the law provides a simple “notification” of the legal document, it can always be served through a judicial officer (“signification”).

The main interest of the service through a judicial officer compared to simple service of document (“notification”) lies in the probative value of the delivery of the act to the addressee. Since the act was served on the addressee through a judicial officer, the addressee is presumed to have acknowledged of its content. Moreover, the proof of service, like any documents from the judicial officer, is an official document which can be questioned only by forgery (complex proceedings).

The legal certainty of this means of transmission is also reinforced by the hierarchy of the methods of delivery imposed by the law upon the judicial officer.

In fact, the law provides that the service must be “personal”, i.e. the document to be served must be directly delivered by the judicial officer to the hands of the recipient. The service in person can be carried out anywhere (article 654 CPC).

It is only under the assumption where personal service proves to be impossible (it is the judicial officer’s responsibility to mention in his report the circumstances characterising such impossibility), that subsidiary means of service are provided:

• Service at domicile or residence with a copy submitted to any person present on the premises – the said person must have accepted the delivery (article 655 CPC) ;
• If nobody can or wants to receive the document at the domicile, the judicial officer will leave a non-delivery notice in the letter box stating that the document can be collected from the office for up to 3 months (article 656 CPC);
• Service by Minute of Attempted service: if the peron upon whom the process must be served does not have any known domicile, residence or place of employment, the judicial officer will send the document to be served to the last known address (article 659 CPC).

Now, the judicial officers can serve documents through electronic means, if the recipient agreed with this modality of transmission.

Enforcement

By virtue of article 18 of the law dated 9 July 1991, the judicial officers alone are authorised to proceed with the compulsory enforcement of judgments or protective seizures, i.e. to proceed with all the coercive measures provided by the law in order to recover a sum or to render an asset of the debtor unavailable.

From the moment that it is required by a creditor, the judicial officer must provide his assistance and proceed with the recovery of the debt for which he has been appointed.

However, he can oppose this under two cases, subject to referring it to the judge of enforcement:

• if the measure seems to be of an illicit nature;
• if the amount of charges seems highly likely to exceed the amount of the sum claimed.

The creditor has the free choice of measures to ensure the recovery of the debt : the type of measure (protective measures or enforcement) and the type of the property (movable or immovable property) are left with his discretion, in the respect of the principles of necessity and proportionality of the measure. The execution of these measures cannot exceed what it is necessary to obtain the payment of the debt. The judicial officer in charge of enforcement is responsible for conducting the execution operations.

The judicial officer has a wide range of measures allowing him to enforce the enforceable title and recover : Seizure of furniture from the debtor for selling; Seizure of debt from the debtor ; Seizure of buildings, Eviction, etc…

Finally, the judicial officer has the power to emit a enforceable title in unpaid check. This enforceable title will have then the same value as a judgment and will allow its enforcement.

competitive sector activities

Excluding activities strictly reserved for the judicial officer, the latter can also intervene in other matters, in conjunction with other professions.

Out-of-court settlement

By virtue of the 1^st article of 2 November 1945, the judicial officer can proceed with an out-of-court settlement of any debts. In this regard, the judicial officer, appointed by a creditor who does not have an enforceable title, can implement non-coercive measures aimed at recovering the debts from the debtor with the debtor’s agreement and without seeking redress through the courts.

When he intervenes for an out-of-court settlement, the judicial officer must take care to prevent any ambiguity regarding the nature and the purpose of the letter. From the time that the debtor does not have a enforceable title, all formulas which lead to the belief that it concerns an execution formality of a deed, are prohibited. Most often, the judicial officer will indicate to the debtor the period beyond which , the creditor can take legal action, if the debtor has not settled his debts

Legal or voluntary sales

Judicial officers can proceed at premises where the judicial auctioneer is not established, with estimates and legal or voluntary public sales of furniture and tangible household property.

Findings

The finding is a legal act which allows a party to constitute a proof, whether it is during a proceeding or outside any dispute.

The judicial officers are authorised by law to proceed, at the request of a judge or an individual, with any observation of acts, without deducing themfrom any resulting factual or legal consequences (this is the difference between a finding and anappraisal). The finding entered into minutes is a sort of neutral “photography” allowing the establishment of the proof of existence of a material situation given at a given time.

The finding is applicable in several fields, such as in the rental field in a manner as to establish the initial and final tenancy inspection report, in terms of construction to state the defects, hidden vices, degradation, in domestic terms to observe for example child abduction, in commercial terms to observe for example a delay in delivery or delivery of a defective product or even in terms of games and competitions to observe the draw, allocation of batches…

The judicial officer can proceed with any findings at the request of a single individual, at the premises belonging to the latter or on a public thoroughfare. On the other hand, in order to proceed with investigations on private premises belonging to third parties, without consent of the latter, or on a private premise open to the public, the judicial officer must previously obtain a legal order authorising it.

Whereas before it only contained simple information, since the law no. 2010-1609 dated 22 December 2010, the finding is valid until contradictory proof is provided. Thus, the investigations carried out, contradictorily or not, benefit from simple presumptions which are invalid only if contradictory proof is provided (except in penal cases, where the finding is considered only as simple information).

Drafting of private agreement and legal consultations

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Judicial officers can proceed with the drafting of any private agreement (such as residential or professional lease contracts, farming leases, etc.). Moreover, they can provide legal consultations.

Additional activities

Judicial officers can, in parallel to their main activity, and subject to the condition of obtaining authorisation from the Public Prosecutor, exercise the following activities:

• building administration;
• the activity of insurance agent;
• The activity of mediator

Except when he exercises the activity of mediator, while exercising such an additional activity, which must be clearly differentiated from that of their main activity, the judicial officer cannot mention his professional capacity. However, this activity is not totally disconnected from the statute of the judicial officer and remains under the control of the Public Prosecutor and the departmental chamber.

Forbidden activities

The judicial officer’s activity is incompatible with the exercise of any commercial or salaried activity (except for additional authorised activities mentioned above), as well as with the exercise of certain legal professions (judge, notary, registrar) and, generally, with any administrative function.

2. Which judicial officer must be selected?

In accordance with the decree of May 11th, 2007, the judicial officers can carry out proceedings of their ministry in the jurisdiction of the “Tribunal de grande instance” of the place of their residence . Within this jurisdiction, the choice of the bailiff belongs to the citizen.

To choose a bailiff, it is advisable to proceed in the following way:

• Select in the EJE directory, the country “France” (to access, click on : http://www.europe-eje.eu/en/directory);
• Indicate the name of the city or the zip code of the addressee of the act or the place of residence of the debtor.
• Choose a judicial officer among the proposed list.

In practice:

• The judicial officer will pass on in case of error the act or the request to a territorially competent colleague;
• You can always address a judicial officer, even not territorially competent, so that he can help you in the implementation of measures of execution.

3. How and and who pays the judicial officers?

Cost of intervention

The cost of establishing and issuing the acts of the judicial officers is generally fixed by a list provided by a decree at the Council of State and calculated as follows: a flat amount given in fixed rate and rates in proportion to the recovery or receipt.

Fixed rates

The amount of rates fixed for each deed is calculated at the base rate. The base rate amount is fixed at € 2.20.

These fixed rates are assigned the following coefficients:

• 0.5 if the amount of the bond is between 0 and € 128;
• 1 if this amount is greater than € 128 and less than or equal to € 1280;
• 2 if it is greater than € 1280.

Moreover, the judicial officer can claim:

• charges corresponding to transportation and advance charges ;
• potentially, process servers’ issue fees ;
• potentially, file management charges.

For all the other deeds not given in the list, article 16 of the decree dated 12 December 1996 provides that the judicial officer’s fees are fixed by mutual consent with the constituent.

Ad valorem duty payable by the debtor

When the judicial officers have received mandate to recover or receive the amounts payable by the debtor by virtue of a legal decision, a deed or a enforceable title, an ad valorem duty is allocated with a minimum of two base rates calculated as per the following brackets:

• 10 % up to € 125 ;
• 6.5 % from € 126 to € 610 ;
• 3.5 % from € 611 to € 1 525 ;
• 0.3 % beyond € 1 525 .

This duty, calculated on the sums effectively received or recovered, irrespective of the amount of debt, cannot exceed € 400 excluding taxes.

Ad valorem duty payable by the creditor

Ad valorem duty on recovery or receipt payable by the creditors (except for advances and living costs):

• 12 % up to € 125 ;
• 11 % from € 126 to € 610 ;
• 10.5 % from € 611 to € 1 525 ;
• 4 % beyond € 1 525 .

They cannot be less than 10 base rates nor greater than 1000 base rate. Excluding any income from consultation fees, they are calculated based on the main credit or the amount of allocation excluding expenses.

Charging of expenses

The charging of expenses differs according to whether the judicial officer intervenes outside any legal proceeding (1), in accordance with a legal proceeding (2) or still withinn the context of the execution (3).

Outside the legal proceedings

The cost of intervention of the judicial officer, according to an out-of-court settlement or execution of an affidavit which will not be ordered by the judge, is payable by the plaintiff.

According to legal proceedings

The charges incurred according to proceedings, such as service charges or findings ordered by the judge, are paid by the plaintiff. The main rule requires that the judgment declares that the charge of these expenses is borne by the loser, by way of expenses. However, sometimes the judge departs from this rule and each party incurs his own expenses.

According to the civil enforcement procedure

According to article 32 of the law dated 9 July 1991, the civil enforcement charges are payable by the debtor, except if it appears that they were not required at the time when they were exposed.

4. Discipline and responsibility of the judicial officer

By the controlled nature of the judicial officer’s profession, the latter is subjected to a strict code of ethics, which are controlled by the Departmental Chamber of Judicial officers. He is also controlled by the relevant ministry (Ministry of Justice), represented by the Public Prosecutor.

The judicial officer’s responsibility must be viewed according to whether it is engaged with regard to his client (1) or vis-à-vis the debtor (2).

Judicial officer’s responsibility with regard to his client

The judicial officer, by virtue of the contract appointing him as agent which binds him to his client, is responsible on contractual grounds for the execution of this mandate.

To this effect, the judicial officer is liable to his client for several contractual obligations:

• Obligation of care, diligence and vigilance: the judicial officer must correctly execute the task for which he has been appointed. He must not show any negligence in the execution of the operations (for example, late notification of a deed) and will be responsible in the event of non-execution, incorrect execution or continued delayed execution.
• Obligation of council: the judicial officer must only inform his client and guide him towards the most appropriate proceedings for the latter.
• Obligation of regularity of the pleadings : the judicial officer must essentially deliver an act which is fully effective. It concerns an obligation of result, which thus prevents the judicial officer from being exempted from his responsibility due to an action of his client.

Judicial officer’s responsibility vis-à-vis the debtor:

The judicial officer is the guarantor of the balance and respect of the rights of the creditor as well as the debtor. Thus, his general duty of information, care or diligence is also applicable with regard to the debtor as the judicial officer is the guarantor of the rights of the recipient, particularly in terms of service.

The debtor who considers having undergone a prejudice in accordance with a service of the judicial officer, can demand compensation before the Judge of enforcement. On the other hand, concerning the conflicts related to the agency contract between the judicial officer and his client, it is the Superior Court under whose jurisdiction the judicial officer exercises his functions, which will be competent (article 65 of the order dated 28 June 1945).

Judge of enforcement

In France, the duties of the judge of enforcement are exercised by the Chairman of the “Tribunal de Grande instance”, who can, under certain conditions, delegate this service to another judge.

1. Material jurisdiction of the judge of enforcement

Article L 213-6 of the legal organisation code:

“The judge of enforcement completely understands the difficulties related to the writs of execution and disputes arising on the occasion of the compulsory enforcement, even if they are based on the right unless they do not escape the competence of the jurisdictions of the legal order.

In the same conditions, he authorises protective measures and understands the disputes related to their implementation.

The judge of enforcement understands, under the same reservation, the proceedings of seizure of real property, disputes arising on this occasion and requests as a result of this procedure or directly related to it, even if they are based on the law as well as the distribution procedure resulting from it.

He understands, under the same reservation, the requests for compensation based on the execution or damageable non-execution of measures of compulsory enforcement or protective measures.

He understands the measures for processing situations of excess debt of individuals as well as the procedure for personal recovery”.

Difficulties related to the enforceable title and the disputes arising on the occasion of the compulsory enforcement

The judge of enforcement has particular knowledge of the questions related to:

• The existence of the enforceable title;
• Enforceable nature of the title;
• Identification of the parties concerned by the enforceable title.

The judge of enforcement also has particular knowledge of:

• The dispute of regularity of the advancement of the enforcement operations;
• Dispute of the extent of the claims observed by the enforceable title;
• Dispute of the accessories of the claim;
• Dispute of the ownership of the seized property (action in distraction or in nullity based on the ownership fault of the debtor) ;
• Seizability and availability of assets.

On the other hand, the judge of enforcement is not incompetent in terms of resolving the litigations based on the dispute of the expenses for the legal proceedings (charges payable to the court and if required expert’s charges) or even lawyer’s remuneration.

The judge of enforcement can:

• interpret the disputed title which has led to the proceedings ;
• rectify the material errors lying in the title at the origin of the measures ;
• give a ruling on the requirement invoked by the debtor;
• order restrictions (the judge of enforcement has the option of adding to a restriction a decision rendered by another judge if the circumstances highlighted by the plaintiff point out the need for it) – the judge of enforcement also knows about the liquidation of the restriction that he has declared or which was declared by another judge (in the latter case, except if the judge has expressly claimed of knowing about it or if he remains the sequester);
• declare the acquisition of the resolutory clause;
• grant periods of grace;
• determine the charge and fix the amount of compulsory enforcement expenses;
• provisionally order the payment of an amount that he will determine;
• order the withdrawal of the measures of immobilisation of motorised land vehicles ;
• order the payment or sequestration of sums of money.

On the other hand, the judge of enforcement cannot in any case modify or cancel the decision measure which serves as base for the proceedings, or suspend its execution (except in the case of granting a period of grace and in terms of expulsion).

Protective measures and disputes related to their implementation

The judge of enforcement can authorise protective measures as well as to know any litigation arising out of the occasion of execution of a protective measure:

Authorising a protective measure:

When the debtor wants to be able to implement a protective measure without holding a enforceable title (see Sheet no. 1), he can approach the judge of enforcement so that he, after having checked that the claim is based on its principle and that there are circumstances likely to risk its recovery, authorises this measure.

Knowing of any litigation arising on the occasion of execution of a protective measure:  

The judge of enforcement has a solid understanding of the disputes related to the acts of execution and the procedure of implementation of the protective measure or still those related to the conversion of the protective measure in terms of execution (See Sheet no. 1).

Seizures of real property

The judge of enforcement knows the procedure for the seizure of real property, disputes arising on this occasion, as well as requests arising from this procedure (see Sheet No. 4).

The requests for compensation based on the execution or damageable non-execution of the compulsory enforcement measures or protective measures

The judge of enforcement can have jurisdiction over the requests for compensation as soon as they are registered according to the compulsory enforcement measures or protective measures. It concerns:

• A request for compensation for faulty execution due to the creditor;
• A request for compensation for abusive resistance of the debtor;
• An action in responsibility of third party liable to provide their expertise to the execution measures;
• An action in responsibility of execution agents, particularly of the judicial officer, when he is appointed by the debtor.

2. Territorial jurisdiction of the judge of enforcement

General jurisdiction

Article 9 decree no. 92-755 dated 31 July 1992 instituting new rules concerning the civil execution procedure for the application of law no. 91-650 dated 9 July 1991 based on the reform of the civil execution proceedings :

“Unless otherwise stipulated, the judge of enforcement territorially competent, as the plaintiff chooses, is that of the place where the debtor lives or that of the place of execution of the measure. If a request is brought before one of these judges, it cannot be submitted to another.

If the debtor lives abroad or if the place where he lives is unknown, the competent judge is that of the place of execution of the measure”.

Thus, the plaintiff has, in principle, an option of competence between the judge of enforcement of the place of residence of the debtor or that of the place of execution of the measure, except if a specific text stipulates otherwise (see below).

Special jurisdiction rules

There are several assumptions according to which the territorial jurisdiction of the judge of enforcement infringes the general law rules:

MEASURES	JUDGE OF ENFORCEMENT COMPETENT
Protective measures (see sheet no.1)	JUDGE or Chairman of the Commercial Court of the place where the debtor lives (art 211 D.92) JUDGE or Chairman of the Commercial Court which has authorised the measure or of the place where the debtor lives (art 218 D.1992) JUDGE of the place of location of the seized assets (art 219 D.92) JUDGE of the place where the debtor lives (art 242 D.92) JUDGE of the debtor’sdomicile (art 245 D.92)
Measures of execution on vehicles (see sheet no. 3)	JUDGE of the place where the debtor lives (art 166 D.92) JUDGE of the place of immobilisation of the vehicle (art 173-4 D.92) JUDGE of the place where the person liable for submission lives (art 176-3,177-5 D92)
Seizure of property placed in a strongbox (see sheet no. 3)	JUDGE of the place where the seized assets are located (art 273, 275-6, 280 D.92)
Seizure of real property (see sheet no. 4)	JUDGE of the TGI within whose jurisdiction is located the seized building (art 2 D.2006) JUDGE of the court within whose jurisdiction the seized building is located or where the debtor lives or, failing this within whose jurisdiction is located anyone of the buildings, under the assumption of plurality of the seized buildings (art 3 D.2006)
Expulsion	JUDGE of the location of the building (art 66 L.91) JUDGE of the location of the furniture (art 198, 201-4, 209 D.92)
Seizure apprehension of tangible property (see sheet no. 3)	JUDGE of the place where the recipient of the deed lives (art 141-4, 146-3 D.92) JUDGE of the place where lives the person from whom the asset is returned (art 142 D.92) JUDGE of the place where the third party holder lives (art 147 D.92)
Seizure apprehension on injunction (see sheet no. 3)	JUDGE of the place where the debtor lives (art 149 D.92) JUDGE who has returned the order (art 151 D.92)
Seizure of garnishment and associated seizure of rights (see sheet no. 3)	JUDGE of the place where the debtor lives (art 655, 183-3 D.92)
Attachment of property claimed (see sheet no.)	JUDGE who authorises the seizure or of the place where the person liable to deliver or return the asset lives or the Chairman of the Commercial Court of this same place (art 156 D.92) JUDGE of the place where the assets are located (art 157 D.92) JUDGE of the place where the holder lives (art 162 D.92)
Seizure and sale (see sheet no.)	JUDGE of the place of seizure (art 98, 117 D.92) JUDGE or the place where the third party lives (art 106 D92)
Distribution of public money (see sheet no.)	JUDGE of the place of sale

3. Proceedings before the judge of enforcement  

Principle : oral and contradictory proceedings

Writ of summons

In Principle, the judge of enforcement is seized through summons. The general rules related to the proceedings introducing an instance are applicable. The writ of summons must be motivated by fact and by law.

In so far as it concerns oral proceedings, the parties can, at all times of the instance, expose their means to the judge of enforcement, by registered letter with acknowledgment of receipt, provided that they have been previously brought to the knowledge of the adversary by registered letter with acknowledgment of receipt before the session.

Representation by an advocate is not mandatory (except in terms of seizure of real property). The plaintiff or the defendant may attend in person. However, the parties can, if they wish, employ the assistance of an advocate, their spouse, their partner, or the person with whom they have signed a pact of solidarity, their parents orrelatives by marriage , collateral line up to the third degree included, and finally persons solely attached to their personal service or their company. This list isexhaustive . Thus, the judicial officer cannot, for example, represent the debtor before the judge of enforcement.

Judgment

The decision rendered by the judge of enforcement is rightfully accompanied by the provisional enforcement (See sheet no. 1). The parties are notified by the jurisdiction. The parties are free to proceed with their service of the judgment.

Appeal against the judgment rendered

The decision rendered by the judge of enforcement is liable for appeal before the Appellate Court. This appeal must be made within 15 days. There is no suspensive effect but that which is challenged by the enforcement can introduce a request for stay of execution.

Special case of seizure on request

The judge of enforcement can render orders on request under the following three cases:

• When the law expressly provides for it (such is the case when the creditor, who does not have a enforceable title, wants to obtain from the judge the authorisation to implement a protective measure) ;
• When the circumstances require that an emergency measure is taken in a non-contradictory manner;
• When the judicial officer in charge of the execution of the title requires the authorisation of the judge of enforcement to accomplish a determined act (such is the case when the judicial officer intends seizing the property of a debtor that is stored in the residential area of a third party).

The submission of a request to the execution court clerk follows the common rules of the procedure on request (motivation of the request, submission of the documents required, preparation of an order project). However, the parties can submit their request in person or through a representative.

The order rendered by the judge of enforcement which must be motivated, is executed immediately (See sheet no. 1). However, it remains provisional.

A rejection order can be the subject-matter of an appeal within 15 days of its declaration. As for the acceptance order of the request, it can be contested before the judge of enforcement who rendered it.