Recognition and enforcement of foreign judgments in French law
Recognition of foreign judgments in France is, first of all, indispensable balance between the requirements for compliance with legal guarantees established by French law and respect for the rule of law and the supremacy of state power. The necessity to ensure legal relations between relevant parties, under certain conditions, results in recognition of foreign judgments in France. In French law, the principle of legal guarantees is implemented as absence of retroactivity of legal rules, binding agreements between the parties, restrictive interpretation of the law on charge and accusation and also as a possibility to appeal against judgments and the availability of the limitation period.
The principle of legal guarantees compels to recognize compulsory foreign judgments. The requirement for recognition of foreign judgments in France is qualified by the principle that is deemed to be crucial: the rule of law of each state on its territory. The judgment is the embodiment of the state’s sovereignty, since it is made on behalf of the state, and we can assume that it cannot be automatically made by other states.
A foreign judgment is a matter of the sovereignty of the state where it has been made, and the state that makes this judgment must be sovereign in order to decide on its recognition under its domestic law. Final recognition and enforcement of a foreign judgment in France depends on the French judiciary, which controls whether a foreign judgment complies with the domestic law.
Furthermore, the recognition of foreign judgments in France is stipulated by the fact that France is a member of the European Union. Taking into account free movement of people, goods, services and capital within the European Union, free “movement” of judgments between the member states is a logical consequence.
There are many statutes and regulations that govern the recognition and enforcement of judgments made in the member states of the EU: Regulation No. 805/2004 of the European Parliament and of the Council creating a European Enforcement Order for uncontested claims dated 21 April 2004, Regulation No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters dated 22 December 2000 (known as the “Brussels I Regulation”), Regulation No. 2201/2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility (known as “Brussels II Regulation”) of 27 November 2003, etc.
In addition, outside the EU France has entered into a multinational agreements governing the recognition and enforcement of foreign judgments. Furthermore, there are bilateral agreements that govern these issues between France and other countries (about fifty agreements).
General rules of French law regarding this matter are embodied in several documents, which are applicable to the recognition of foreign judgments in France. Article 509 of the Code of Civil Procedure of France states that “Judgments rendered by foreign courts and deeds received by foreign officers shall be enforceable on the territory of the French Republic in the manner and under the circumstances specified by law.” Article 212-8 of the Code of Judicial System stipulated that “higher court independently recognizes applications for recognition and enforcement of judgments, foreign official documents, as well as French and foreign arbitral awards.”
Any foreign decision cannot take legal force in France until it is reviewed by court as to its compliance with the laws of France. This control is ensured by the enforcement procedure, i.e. the exequatur, which actually means “execution.” It is French jurisdiction that introduced this legal concept and procedure. Foreign judgments can be enforced in France through this enforcement procedure, and based on a decision on the enforcement, and only by order of French rather than a foreign judge.
The above mentioned procedure for the enforcement of judgments refers to the general rules of French law applicable to the recognition of foreign judgments in France. The procedure for recognition of judgments of the European Court of Human Rights is governed by different rules, as it does not depend on the general provision of French law.
The states that signed the Convention are obliged to comply with the Court’s judgments. The judgments of the European Court of Human Rights are binding, and cannot be appealed. Such judgments cannot be changed by the states that signed the Convention, and shall be executed without reconsideration.
France has introduced the mechanism of review of relevant internal procedures. In particular, the Act of 15 June 2000 reinforces the concept of the presumption of innocence, and establishes the right to reconsider a final judgment after the Court has made a decision which established a violation of the Convention. It should be noted that “once the established violation resulting in consequences in the form of damage cannot be discontinued, the just satisfaction shall be afforded under Article 41 of the Convention”.
France is among the countries against which complaints are most often filed with the European Court of Human Rights. This confirms the urgent need for a legislative reform. The review of the internal provisions of the French law criticized by the judgments of the European Court of Human Rights, and the enforcement of a judgment delivered by the Court are important issues deserving the efforts by the French government, as it aims to ensure the quality of justice in favor of human rights.
- - - -
Pierre-Yves Lucas et Lynda Sabilellah
Contribution to the book of SALKOM law office at Kiev , Ukraine : « Issues of the application of international legal standards in the legal system of Ukraine », 2013.