Agrégateur de flux

Tribunal de commerce de Paris

Tribunal judiciaire de Thonon-les-Bains

As reported by Fabienne Jault-Seseke on this blog, the French supreme court for civil and criminal matters (Cour de cassation) ruled in a judgment of 26 May 2021 that “the principles of primacy and effectiveness of European Union law” require that French courts apply ex officio certain choice of law rules contained in EU Regulations.

This is a significant evolution from the doctrine that the court had adopted 20 years ago. This doctrine was the result of decades of academic debates and changes in the case law of the court. Interestingly enough, at the end of the 1980s, the court had ruled that choice of law rules contained in international conventions (essentially the conventions negotiated under the aegis of the Hague Conference of Private International Law) deserved a different status and should be applied ex officio, but the court dropped this exception a few years later.

Background: The Peculiar Consequence of Applying Choice of Law Rules

As most civil law jurisdictions, France recognises the principle jura novit curia. Article 12 of the French Code of Civil Procedure provides that courts must decides disputes in accordance with the legal rules which are applicable and that they should do so ex officio if necessary.

The extension of these principles to choice of law rules was always debated, however. One likely explanation is that the operation of choice of law rules may result in the designation of foreign law. The content of foreign law needs then to be determined, and this process typically involves private experts who must be remunerated (remarkably, French courts virtually never appoint judicial experts for that purpose, although they routinely do so for establishing complex facts). It is understandable, therefore, that the parties would not always want to engage the resources for establishing the content of foreign law, in particular for cases with limited financial stakes, or involving impecunious parties. The obligation to apply systematically choice of law rules may thus have appeared as generating severe practical difficulties, and it took the Cour de cassation decades to craft a doctrine which would weigh the competing interests in a satisfactory manner.

Why Impose Ex Officio Application when the Parties Could Settle?

The current doctrine of the court was adopted in two judgments of 26 May 1999. The obligation of French courts to apply ex officio choice of law rules has since then been based on a major distinction. In matters where the parties may not dispose of their rights (e.g. parenthood, as in the first 1999 judgment), French courts ought to apply choice of law rules ex officio. In contrast, in matters where the parties may dispose of their rights (e.g. an international sale of goods, as in the second 1999 judgment), French courts have no obligation to apply choice of law rules if none of the parties raised their application or the application of foreign law. The system is mixed: some choice of law rules must be applied ex officio, others need not.

The distinction is between rights that the parties may dispose of, and rights that parties may not dispose of. The origin of the distinction is to be found in the writings of the most influential scholar in French private international law in the last decades, Pierre Mayer. Mayer argued that, while in principle foreign law should be considered as law and thus applied ex officio, an exception should be made for those rights which the parties could modify, and indeed waive. This is because they could decide to settle their dispute at any time, under any terms. Thus, a pragmatic solution should be to allow them to argue their case under the (French) law of the forum if they so wish. Just as they could have ignored the content of the applicable law to reach a settlement, they should be allowed to implicitly designate another law.

The Scope of the New Obligation to Apply EU Choice of Law Rules Ex Officio

The new rule laid down by the court in the judgment of 26 May 2021 establishes a distinction between two categories of EU choice of law rules. The Cour de cassation rules that the obligation to apply them ex officio is limited to mandatory choice of law rules, and that mandatory choice of law rules are rules that cannot be derogated from. This is a clear reference to party autonomy, that many EU regulations of private international law recognise. The meaning of the ruling is thus that the obligation is limited to the application of choice of law rules for which the European lawmaker did not grant freedom of choice to the parties.

The particular case was concerned with a tort action for unfair competition. The applicable choice of law rule is contained in Article 6 of the Rome II Regulation, and it expressly excludes the power of the parties to choose the applicable law (Art. 6(4)). The rule in Article 6 is thus to be considered as an EU mandatory choice of law rule, and French courts must now apply it ex officio.

In contrast, the general choice of law rule in Article 4 of the Rome II Regulation (application of the law of the place of damage in tort actions) is a default choice of law rule. It only applies in the absence of a choice of the applicable law made by the parties pursuant to Article 14 of the Rome II Regulation. Likewise, in contractual matters, the parties may choose the law governing their contract in most cases (under Article 3), which means than most choice of law rules contained in the Rome I Regulation are defaults.

Although the Court does not say so, it seems clear that the distinction that it has introduced is inspired from its 20 year old doctrine distinguishing between rights that the parties may dispose of, and rights that parties may not dispose of. But it is not absolutely identical. In this case, the action was concerned with an act of unfair competition which affected exclusively the interests of a single competitor (Rome II Regulation, Art. 6(2)). It was governed by general fault based tort liability. The interests involved were purely private, and it is likely that the parties could freely settle the action. Under the old doctrine, it seems that a French court would not have had the obligation to apply the choice of law rule ex officio. Under the new doctrine, it should have, because the parties may not freely choose the applicable law (although they may still freely settle).

Primacy and Effectiveness of EU Law?

Would it be a problem for the effectiveness of EU law if the parties were allowed to argue a case of unfair competition under the law of the forum instead of the law designated by the applicable EU choice of law rule? The Brussels Ibis Regulation grants jurisdiction to a number of courts in the EU, and other courts might apply all choice of law rules ex officio. In most Member States, however, the idea that courts, after ruling that foreign law applies, might then go on and establish the content of foreign law without the cooperation of the parties is, at best, unrealistic. And in most Member States, if foreign law cannot be established, courts will apply the law of the forum. You can lead a horse to water, but you can’t make him drink.

So the crucial question is that of the establishment of the content of foreign law. At the present time, the courts of most Member States do not have the possibility to ascertain the content of foreign law without the assistance of the parties. For this to change, considerable resources would need to be invested, to establish either centre(s) of comparative law which could provide expert opinions, or a network of courts which would be required to cooperate for that purpose. As long as these resources are not invested, the issue of the ex officio application of choice of law rules cannot be addressed without taking into account the interests of the parties.

Crossposted at EULawLive.

The Court delivered earlier this week (2 August 2021) its decision in case C‑262/21 PPU (A v B), which is about the impact of a transfer decision under Regulation no 604/2013 on the terms “wrongful removal or retention” under Article 2 Brussels II bis (adoption of the transfer decision followed by its annulment without the tranferred persons being authorised to return). The judgment is currently available in all EU official languages (save Irish), albeit not in English. Here is the French version (to check whether an English translation has finally been made available, just click on the link below and change the language version):

« L’article 2, point 11, du règlement (CE) no 2201/2003 […] doit être interprété en ce sens que ne peut constituer un déplacement illicite ou un non-retour illicite, au sens de cette disposition, la situation dans laquelle l’un des parents, sans l’accord de l’autre parent, est conduit à emmener son enfant de son État de résidence habituelle vers un autre État membre en exécution d’une décision de transfert prise par le premier État membre, sur le fondement du règlement (UE) no 604/2013 du Parlement européen et du Conseil, du 26 juin 2013, établissant les critères et mécanismes de détermination de l’État membre responsable de l’examen d’une demande de protection internationale introduite dans l’un des États membres par un ressortissant de pays tiers ou un apatride, puis à demeurer dans le second État membre après que cette décision de transfert a été annulée sans pour autant que les autorités du premier État membre aient décidé de reprendre en charge les personnes transférées ou d’autoriser celles-ci au séjour ».

Source : https://curia.europa.eu/juris/document/document.jsf;jsessionid=F6B1AEDDB2F275B0B192DEE518C60676?text=&docid=244847&pageIndex=0&doclang=FR&mode=req&dir=&occ=first&part=1&cid=4913022

This event is organised by CANACO and the Chamber of Commerce of Mexico. Registration is free of charge. To register send a message to the following email address: arbitrajecanaco@arbitrajecanaco.com.mx.

Gary Born’s approach has been controversial. See our previous post here. The EAPIL blog has also been very active on this topic, see the recent post: The 2005 Hague Convention on Choice-of-Court Agreements: A Further Reply to Gary Born. Thus this event promises to be extremely interesting and will allow the further exchange of views.

Tribunal judiciaire de Valence

Tribunal judiciaire de Paris

Tribunal judiciaire de Bordeaux

Cour d'appel de Versailles

Cour d'appel de Versailles

Pourvoi c. déc. Cour d'appel de Paris du 2 novembre 2020

Dear Friends and Colleagues,

 

even though the pandemic situation seems to decrease in our part of the world, the University of Bonn remains very careful and will still not allow on-site events of a larger scale for the next months. We have therefore once again made the decision to reschedule the Conference (originally planned for the 25/26 September 2020, and already postponed to 13/14 September 2021) on Friday and Saturday, 9 and 10 September 2022. However, as there are reasonable expectations for the HCCH 2019 Judgments Convention to enter into force around that time, we are confident – especially with a view to the latest recommendations of the European Commission – that we will experience an even more focused and rewarding discussion on the topic.

Please, find below the preliminary programme of the Conference.

 

***

Brexit has become reality – one more reason to think about the EU’s Judicial Cooperation with third states:

The largest proportion of EU economic growth in the 21st century is expected to arise in trade with third countries. This is why the EU is building up trade relations with many states and other regional integration communities in all parts of the world. The latest example is the EU-MERCOSUR Association Agreement concluded on 28 June 2019. With the United Kingdom’s exit of the Union on 31 January 2020, extra-EU trade with neighboring countries will further increase in importance. Another challenge for the EU is China’s “Belt and Road Initiative”, a powerful global development strategy that includes overland as well as sea routes in more than 100 states around the globe.

The increasing volume of trade with third states will inevitably lead to a rise in the number and importance of commercial disputes. This makes mechanisms for their orderly and efficient resolution indispensable. China is already setting up infrastructures for commercial dispute resolution alongside its belts and roads. In contrast, there seems to be no elaborate EU strategy on judicial cooperation in civil matters with countries outside of the Union, despite the DG Trade’s realisation that “trade is no longer just about trade”. Especially, there is no coherent plan for establishing mechanisms for the coordination of cross-border dispute resolution and the mutual recognition and enforcement of judgments. This is a glaring gap in the EU’s policy making in external trade relations.

This is why the Bonn group of PIL colleagues – Moritz Brinkmann, Nina Dethloff, Philipp Reuss, and Matthias Weller – will host a conference on Friday and Saturday, 9 and 10 September 2022, at the University of Bonn that seeks to explore ways in which judicial cooperation in civil matters between the EU and third countries can be improved by the HCCH 2019 Judgments Convention as an important driver, if not game changer, of legal certainty in cross-border commercial relations.

The list of speakers includes internationally leading scholars, practitioners and experts from the Hague Conference on Private International Law (HCCH), the United Nations Commission on International Trade Law (UNCITRAL), and the European Commission (DG Trade, DG Justice).

The Conference is co-hosted by the HCCH as one of the first European events for discussing the HCCH 2019 Judgments Convention. The Conference will be further supported by the Zentrum für europäisches Wirtschaftsrecht at the University of Bonn and The International Litigation Exchange (ILEX).

The Organizers will kindly ask participants to contribute with € 100.- to the costs of the event (includes conference dinner).

 

Dates:

Friday, 9 September 2022, and Saturday, 10 September 2022.

 

Venue:

Universitätsclub Bonn, Konviktstraße 9, D – 53113 Bonn

 

Registration: sekretariat.weller@jura.uni-bonn.de

 

Registration Fee: € 100.-

To be transferred to the following account (you will receive confirmation of your registration only after payment was booked on this account):

Bonn Conference 2020

IBAN: DE71 5001 0517 0092 1751 07

BIC:   INGDDEFF (ING-Diba Bank)

 

Programme

Friday, 9 September 2022

 

1.30 p.m.     Registration

2 p.m.          Welcome note

Prof Dr Wulf-Henning Roth, University of Bonn, Director of the Zentrum für Europäisches Wirtschaftsrecht (ZEW)

Dr Christophe Bernasconi, Secretary General of the HCCH (video message)

2.10 p.m.      Part I: Cornerstones

Chair of Part 1: Prof Dr Matthias Weller

Keynote: Hague Conference’s Perspective and Experiences

Hans van Loon, Former Secretary General of the Hague Conference on Private International Law, The Hague

1. Scope of application

Prof Dr Xandra Kramer, Erasmus Universiteit Rotterdam, Netherlands

2. Judgments, Recognition, Enforcement

Prof Dr Wolfgang Hau, Ludwig-Maximilians-Universität Munich, Germany

Discussion

 

3.30 p.m.     Coffee Break

 

4.00 p.m.      Part II: Cornerstones (Cont.)

Chairs of Part 2: Prof Dr Nina Dethloff / Prof Dr Moritz Brinkmann

3. Jurisdictional filters

Prof Dr Pietro Franzina, Università Cattolica del Sacro Cuore Milano, Italy

4. Grounds for refusal

Prof. Dr. Marcos Dotta, Universidad de la República, Uruguay; Sub Director de Asuntos de Derecho Internacional del Ministerio de Relaciones Exteriores de Uruguay

Discussion

5. Trust management: Establishment of relations between Contracting States

João Ribeiro-Bidaoui, First Secretary of the HCCH, Netherlands

6. “The Hague System”: Relation to the HCCH 2005 Convention on Choice of Court Agreements

Prof Paul Beaumont, University of Stirling, United Kingdom

7. “The Hague System” and “the Brussels System”: Relations to the Brussels and Lugano Regime

Prof Marie-Élodie Ancel, Université Paris-Est Créteil, France

Discussion

 

7.30 p.m.               Conference Dinner

 

 

Saturday, 10 September 2022

9.00 a.m.     Part III: Prospects for the World

Chairs of Part 3: Prof Dr Moritz Brinkmann / Prof Dr Philipp Reuss

1. European Union (EU)

Andreas Stein, Head of Unit, DG JUST – A1 “Civil Justice”, European Commission

2. South European Neighbouring and EU Candidate Countries

Ass. Prof Dr Ilija Rumenov, Ss. Cyril and Methodius University, Skopje, Macedonia

3. Africa (Commonwealth / common law)

Dr. Abubakri Yekini, Lagos State University, Nigeria
Dr. Chukwuma Okoli, Postdoctoral Researcher in Private International Law at the T.M.C. Asser Institute, Netherlands

4. MERCOSUR

Dr Veronica Ruiz Abou-Nigm, Director of Internationalisation, Senior Lecturer in International Private Law, School of Law, University of Edinburgh, United Kingdom

Discussion

 

11:00 a.m.    Coffee Break

 

11:30 a.m.    Part IV: Prospects for the World (Cont.)

Chair of Part 4: Prof Dr Nina Dethloff

5. ASEAN

Adeline Chong, Associate Professor of Law, Singapore Management University, Singapore

6. China (OBOR)

Prof Zheng (Sophia) Tang, University of Newcastle, United Kingdom

Discussion

 

12:30 p.m.   Part V: Outlook

Chair of Part 5: Prof Dr Matthias Weller

7. International Commercial Arbitration

Jose Angelo Estrella-Faria, Senior Legal Officer UNCITRAL Secretariat, International Trade Law Division Office of Legal Affairs, United Nations, Former Secretary General of UNIDROIT

8. Lessons from the Genesis of the Judgments Project

Dr Ning Zhao, Senior Legal Officer, HCCH

Discussion

 

1.30 p.m.     Closing Remarks

Dr João Ribeiro-Bidaoui, First Secretary, HCCH

This post was contributed by Eirini Tsikrika, Master 2 Paris 1 Panthéon-Sorbonne, Ph.D candidate at the National and Kapodistrian University of Athens 

 

On the 25th of June the Supreme Court of Greece has rendered a provisional judgment to request preliminary ruling of the CJEU on the question of compatibility of the right to damages for breach of a choice-of-court agreement with the European ordre public. The judgment forms part of the group of decisions related to the Alexandros T case [Starlight Shipping Company v Allianz Marine & Aviation Versicherungs AG ([2014] EWCA Civ 1010)]. The case has also been reported by Apostolos Anthimos, who had already stressed out the importance of an EU level solution, see his blog posts concerning Decisions Nr. 371/2019 and Nr. 89/2020 of the Piraeus Court of Appeal respectively. Also, the procedural history of the case in England is meticulously exposed in the post of Dr. Martin Ilmer.

 

The facts of the case

The dispute arose out of a marine insurance contract, which contained a choice-of-court agreement designating the courts of London as competent. After the shipwreck of the ship, the ship owners brought proceedings against the insurers before the High Court of Justice, which were finally ended with the parties reaching an out-of-court settlement. The settlement agreement itself contained also a prorogation clause in favor of the English courts.

At a later stage, the ship owners brought action before the courts of Piraeus, alleging damages suffered due to the conduct of the other party in the English proceedings. This conduct consisted of the systematic discrediting of the seaworthiness of the ship by using false evidence.

As a response, the insurers contested the jurisdiction of the Greek courts, by invoking the prorogation clauses contained in both the insurance contract and the settlement agreement. Furthermore and while proceedings before the court of Piraeus were still pending, the insurers filed a damages claim before the High Court of Justice for breach of the choice-of-court agreements, seeking recovery for the legal costs and expenses incurred in the Greek proceedings.

Their action was fully accepted by virtue of the [2014] EWHC 3028 (Comm) decision of the High Court of Justice, as the latter acknowledged the existence of a valid, exclusive choice-of-court agreement in favor of the English jurisdiction. Subsequently, the courts of Piraeus declined jurisdiction and dismissed the claim of the ship owners on the grounds of the res judicata effect of the English judgment, while refusing the existence of grounds for non recognition of the English judgment in Greece (Dec. Nr. 899/2016, 28.3.2016, Piraeus Court of First Instance).

 

The decision of the Court of Appeal

The ship owners formed an appeal against the decision of the Court of First Instance, alleging that the latter was wrong to recognize a decision granting compensation for breach of a choice-of-court agreement, on the grounds of violation of the principle of mutual trust and of the European ordre public.  Therefore, the decision of the Court of Appeal (Dec. Nr. 465/2020, 07.03.2019, Piraeus Court of Appeal) was focused on two points:

1. The affinity of a decision recognizing the right to damages for breach of a choice-of-court agreement with the anti-suit injunctions.
2. The violation of the procedural ordre public as ground for non recognition and enforcement of such decisions, under the Articles 34 (1) and 45 (1) of the EU Regulation 44/2001 (Brussels I Regulation).

As far as it concerns the first point, the Court of Appeal refused to draw a parallel between the right to damages for breach of a choice-of-court agreement and the anti-suit injunctions, which have been explicitly banned from the system of the Brussels I Regulation by virtue of the CJEU’s Turner v. Grovit and West Tankers v. Allianz decisions (although West Tankers concerned an arbitration agreement, dealing primarily with the question of the Regulation’s scope of application). According to the Greek courts, such decisions do not aim at the international jurisdiction of a foreign court but they refer exclusively to the non-execution of the prorogation agreement-as it would be with the failure to comply with any other contractual obligations- and consequently to the existence or non-existence of contractual liability lying with the violating party. (For a different view on the question of compatibility with the principle of mutual trust, see the analysis included in the doctoral thesis of Dr. Mukarrum Ahmed).

Proceeding with the second point, the court stresses that each decision admitting violation of a choice-of-court agreement and consequently international jurisdiction of the forum prorogatum cannot but correlatively refuse international jurisdiction of the forum yet seized. Hence, that is perfectly tolerated by the European ordre public, since it doesn’t constitute an illegitimate interference in the adjudicatory jurisdiction of a foreign court but results from the mere application of the rules of the Brussels I Regulation. And the Court went on, to point out that even a false application of the rules of the Regulation could not justify the non recognition of the decision of a Member State, since a violation of the rules on international jurisdiction does not establish a violation of the procedural public order. It is clear-the court continues- that the misinterpretation or false application of the rules on international jurisdiction is overridden by the objective of the free circulation of judgments within the European judicial area.

Based on these assertions, the Court of Appeal declared lack of       jurisdiction of the Greek courts to rule on the merits of the case, confirming the decision of the Court of First Instance.

The exequatur procedure and the preliminary reference to the CJEU

In the meantime, a parallel exequatur procedure has been initiated at the insurers’ initiative, who sought to execute the English judgment in Greece. The relevant exequatur request was fully accepted, while the application for refusal of enforcement filed by the ship owners, was rejected. Finally, the ship owners seized the Supreme Court pursuant to Article 44 and Annex IV of the Regulation, so that the question shall be resolved by means of a final and irrevocable decision. The Supreme Court, requesting a preliminary ruling, addressed to the CJEU -almost verbatim- the following questions (Dec. Nr. 820/2021, 25.6.2021, Supreme Court of Greece):

1. In addition to the conventional anti-suit injunctions, are there any other decisions or orders which, even implicitly, impede the applicant’s right to judicial protection by the courts of a Member State and therefore fall under the scope of the Articles 34 (1) and 45 (1) of the Brussels I Regulation? And more specifically, can a decision granting compensation for breach of a choice-of-court agreement, be considered as being against the European public order?

 

1. In case of a negative answer to the first question, do such decisions still fall under the scope of the Articles 34 (1) and 45 (1) of the EU Regulation 44/2001, once they are considered as being against the national public policy of Greece, so that the objective of the free movement of civil judgments within the European Union c?uld be overridden in that case?

It needs to be noted that the English, Spanish courts and recently the German BGH have already acknowledged the right to damages for breach of a jurisdiction clause. Yet the CJEU had not the chance to take position on such question, since the forum derogatum was in the previous cases a non EU member-state, where the principle of mutual trust does not apply. It remains to be seen whether the solution adopted by the national courts, will be expanded to the European judicial area. A highly anticipated decision with secondary implications also on the key issue of the nature of a choice-of-court agreement.

This post was contributed by Dr. Sally El Sawah, Avocat aux Barreaux de Paris et du Caire, Registered Foreign Lawyer (England & Wales), Co-Founder & Head of Arbitration and Litigation at JUNCTION (Paris).

In a judgment of 12 May 2021 (no. 19-13.853), the French supreme court for civil and criminal matters (Cour de cassation) ruled that central bank accounts are un-attachable assets according to Article L-153-1 of the Monetary and Financial Code (“CMF”). Therefore, any debate about the waiver by the State of its immunity from execution was irrelevant. Although the entire grounds of appeal before the Cour de cassation were based on the State immunity from execution, its scope and limits and the consequences of its waiver, the Court of cassation has decided to shift the debate to the question of un-attachability (“insaisissabililté”) of central bank accounts. Un-attachability echoes the inviolability for diplomatic property. Even though they produce similar effects, un-attachability, inviolability and immunity are three separate legal concepts such that a waiver of the latter is ineffective to the former two.

Background

It is possible today to talk about the Commisimpex saga, that would join the landmark precedents Noga, NML Capital and Yukos in the realm of State Immunity from execution.

This case is one of the many failed attempts of post-judgment measures of constraint exercised by the Congolese company Commissions Import Export SA (Commisimpex) in execution of two final and enforceable arbitral awards rendered against the Democratic Republic of Congo (“the DRC”) on December 3, 2000, and January 21, 2013. The fact that the contractual documents contained a clause providing for the waiver by the DRC of its immunity from execution was not of great assistance to Commisimpex when it tried to attach the DRC’s and/or its emanations’ assets for over a decade now. These attachments involved a pallet of assets ranging from mere shares in a société civile immobilière (non-trading real-estate company) to bank accounts of the DRC’s consular and diplomatic representations in France.

Here, they involved the Democratic Republic of Congo’s account with the Bank of Central African States (“BEAC”) held in France. This case was another opportunity for the Court of cassation to interpret (and perhaps revisit its reading of) Article L.153-1 of the Monetary and Financial Code (“Article L-153-1CMF) in light of Articles 18 and 19(a) and (b), and 21.1(c) and 21.2 of the United Nations Convention on Jurisdictional Immunities of States and their Property (“UNCSI”, although not yet entered into force, but from the perspective that it is a codification of customary international law), and Article 6§1 of the ECHR and Article 1 of its First Protocol.

Article L-153-1 was adopted in 2005 to limit the possibility of attachment over central bank accounts held in France on behalf of a State, regardless of the identity of the account holder. In other words, even if the account is held in the name of the central bank itself, and not that of the State, this did not constitute a reason to allow the attachments over these accounts. Any attempt to distinguish between the accounts held on behalf of the State based on the purpose for which they were used was also doomed to fail. Whether or not the accounts held on behalf of the State were in use or destined to be used for a commercial purpose was irrelevant. In any event, it was de facto impossible to prove such use for many reasons, amongst which was the principle of banking secrecy. In addition to these restrictions, another one was added by this article; it required the creditor holding a final enforceable title to obtain leave from the execution judge prior to making the attachment (although such requirement does not exist for the other creditors who hold a final and enforceable title against non-sovereigns). In practice, it has become impossible to seize central bank accounts in France, regardless of their holder or the purpose of their use.

Analysis

As expressly mentioned in the travaux préparatoires, the purpose behind Article L153-1 was to increase the competitiveness of Paris as an attractive financial hub of foreign central bank reserves. Such purpose was sufficient for the Court of cassation to declare the conformity of Article L153-1 with the French Constitution (Cass. civ. 2, July 11, 2013, no. 1340.036). The conformity of this article with the ECHR was also confirmed by the French Court of cassation (Cass. civ. 2, January 11, 2018, no. 16-10.661). In that decision, the Court of cassation affirmed that the restriction to article 6§1 was reasonable and proportionate insofar as it pursued the legitimate purpose of complying with customary international law rules. It was proportionate since even though the burden of proof that the accounts held by the Central Bank for its own account was used for other than governmental non-commercial purposes difficult, it was not impossible.

In the judgment commented here, the appellant raised similar arguments. On the one hand, Commisimpex tried to convince the Court of cassation that there was waiver of state immunity from execution. On the other hand, the alternative measures of recourse providing for a possible recourse by the Creditor before administrative courts to engage the responsibility of the French State for violation of the principle of equality before public charges when it granted immunity from execution to the foreign State were not applicable in the case at hand. Indeed, Commisimpex was not a taxpayer in France, and thus could not avail itself of the possibility of recourse before French administrative courts (definitely, the appellant was alluding to the Court of cassation’s decision of May 25, 2016, no. 15-18.646).

Following its traditional stern and concise way of making solemn declarations of principle, the Court of cassation stated that the purpose behind Article L.153-1 was to protect the functioning of institutions which contribute to the definition and implementation of the State monetary policy and to prevent the blockade of foreign exchange reserves deposited in France. This purpose was legitimate. Accordingly, the subsequent restriction to the right of property and the right of access to court and to an effective execution of final judicial decisions which resulted from the un-attachability of these accounts was legitimate. It was also proportionate insofar as it was limited to the central bank assets deposited in France and did not encompass all the other property of the State. Therefore, there was no violation of Article 6§1 of the ECHR, nor of the right to property under Article 1§1 of the Additional Protocol to the ECHR.

However, the Court of cassation’s declaration that the proportionality test was met since State assets other than central bank accounts could be seized is strikingly theoretical. Indeed, the Loi Sapin II, adopted in 2016, has embraced the same approach as in L-153-1 CMF with a requirement of prior leave and a presumption of the governmental non-commercial nature of State assets listed in that law, which rendered any possible enforcement over State assets illusionary.

It is noteworthy that in this decision, the attachment pursued the Democratic Republic of Congo’s account with the Bank of Central African States, and not those of the Central Bank of Congo (“CBC”). The BEAC operates as the central bank of six African States including the Democratic Republic of Congo and coexists in parallel with the CBC. The broad wording of Article L.153-1 which uses the terms “central bank” and “monetary authority” allows the protection of not only the CBC, but also any other entity which performs central bank functions and acts as a State’s monetary authority, such as the BEAC according to its Charter (Article 1). However, the main difference between these two central banks is that the BEAC in fact enjoys the privileges and immunities of international organisations (Article 6.1 of its Charter). One may wonder in such case whether Article L-153-1 CMF was the right provision to apply, and thus, whether there was room for the application of the so-called “un-attachability”. Indeed, Article 6.6 of the BEAC’s Charter provides that “only the net credit balances of accounts opened in the books of the Central Bank may be subject to seizure, in execution of a final judicial decision”. It is striking that this issue was not addressed by the Court of cassation (perhaps it has not been raised by the appellants before the Court of Appeal in the first place).

Regardless of the particularity of the BEAC and its Charter, what seems more striking though, is the absence of any reference whatsoever to Article 21.2 UNCSI, which provides for a possible attachment of central banks accounts in case of express waiver according to Articles 18.a and 19.a of the UNCSI.  Placing the debate on the ground of un-attachability allowed the Court of cassation to mute any possible argument based on such waiver. Immunity and un-attachability are two different concepts. The waiver by the DRC of its immunity from execution was thus inoperative and could not encompass un-attachable assets. Hence, the Court of cassation did not have to conciliate the un-attachability of Article L.153-1 CMF with the regime of central bank accounts under UNCSI.

Most likely, the real reason behind the Court of cassation’s new approach lies in the bad experience it has encountered when it has tried to be bold back in 2015 in the same Commisimpex Saga (Cass. Civ. 1e, May 13, 2015, no. 13-17.751). One may recall that, back then, the bold yet accurate interpretation adopted by the Court of cassation of Article 21 UNCSI to tackle the issue of waiver of State immunity from execution over diplomatic bank accounts has cost it the “legislative censure” by the Sapin II Act. This legislative reform has de facto rendered any possible execution over foreign States’ assets practically impossible. It is permissible in these circumstances to say that State immunity from execution in France has in fact become (quasi) absolute. Any kind of State property which is not evidently and ostensibly commercial, will be protected by State immunity from execution, and when the conditions for an exception thereto can be met, French courts could avoid the discussion by inventing a new layer of protection that it may call un-attachability …

Of course, it is important to attract foreign exchange reserves to the deposit of the Banque de France, yet, not at the high price of the Rule of law.

Pourvoi c. déc. Cour d'appel de Toulouse du 1er mars 2021

Tribunal de première instance de Papeete

Pourvoi c. déc. Cour d'appel de Paris du 4 mai 2021