Comparative Guides

Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.

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4. Results: Answers
Enforcement of Foreign Judgments
On what grounds can the defendant challenge recognition and enforcement of a foreign judgment?

Answer ... Enforcement of foreign non-EU judgments: According to French private international law, the defendant cannot obtain a review of the case. French legal practice allows only for the following to be invoked:

  • non-compliance with procedural regularities or French international public policy;
  • lack of competence of the foreign court; or
  • the existence of fraud against law in the prior action (Court of Cassation, First Civil Chamber, 20 February 2007, Appeal 05-14.082; see recently Court of Cassation, First Civil Chamber, 20 March 2019, Appeal 18-50.005: “the decision rendered by a court sitting in Morocco shall automatically have the authority of res judicata in France if it emanates from a competent court, if the parties have been legally summoned, represented or declared defaulting, if it has, according to Moroccan law, authority of res judicata and is enforceable, if it does not contain anything contrary to French public policy and is not contrary to a French judicial decision having in its regard the authority of res judicata;… the judge hearing a request for recognition of a Moroccan judgment, who shall examine ex officio the conditions for its international regularity, shall confine himself to verifying whether these conditions are met”).

Enforcement of judgments between EU member states: The debtor’s possibilities to challenge a foreign judgment under the Brussels I Regulation are also limited: under no circumstances may a foreign judgment be reviewed as to its substance (see Article 45(2) of the new Brussels I Regulation and Article 36 of the old Brussels I Regulation).

The only possible means of defence are defined in Articles 34 and 35 of the regulation. According to Article 34, recognition of a foreign judgment will be refused in case of:

  • a manifest conflict with French public policy, provided that the defendant had no possibility of defence in the prior action; or
  • incompatibility with an earlier judgment involving the same cause of action and the same parties in the member state of recognition, another member state or a third state.

Although Article 35(3) states the principle that the competence of the jurisdiction in the country of origin must not be reviewed, it allows exceptions to this principle with regard to decisions in matters relating to insurance or consumer contracts, or decisions of the exclusive jurisdictions according to Article 22 of the Brussels I Regulation. In these cases, lack of competence will constitute a reason for refusal of recognition.

The reasons for refusal set out in Articles 34 and 35 can be taken into consideration at different stages of the process of recognition and enforcement if there is a legal action either to solely obtain recognition or to raise an incidental question of recognition (Article 36 of the old Brussels I Regulation), and during the appeal procedure lodged by the defendant after the decision on the application for a declaration of enforceability (Article 49 of the new Brussels I Regulation).

The burden of proof concerning the reasons set out in Articles 34 and 35 of the Brussels I Regulation falls on the defendant.

Defences that the debtor could have raised during the prior action are also excluded. They can be raised only as part of an appeal against the foreign judgment in the member state in which the decision was rendered.

Under the new Brussels I Regulation, the judgment debtor can prevent a judgment from being enforced for the same reasons according to Article 46. The reasons for refusal of recognition and enforcement set out in Articles 34 and 35 of the old Brussels I Regulation have been incorporated into Article 45 of the new Brussels I Regulation. They remain unchanged.

For more information about this answer please contact: Anke Sprengel from EBA Endrös-Baum Associés
What is the limitation period for filing a challenge?

Answer ... Under French law, civil proceedings are oral, so that arguments can be presented during the court hearing. Nevertheless, it is better to inform the applicant in writing of the legal arguments which constitute the defendant’s challenge within a reasonable timeframe, in order for it to be able to respond.

For more information about this answer please contact: Anke Sprengel from EBA Endrös-Baum Associés
Can the defendant seek injunctive relief to prevent enforcement while a challenge is pending?

Answer ... If the defendant is the judgment debtor, it cannot obtain injunctive relief to prevent foreign judgment enforcement proceedings in France.

If the defendant is the judgment creditor, it can be prevented from enforcing a foreign judgment only if bankruptcy proceedings have been initiated against the judgment debtor or if immunity from execution has been granted to the judgment debtor (eg, where it is a public legal entity or a state) (see question 3.7.)

For more information about this answer please contact: Anke Sprengel from EBA Endrös-Baum Associés
Enforcement of Foreign Judgments