Cass. Civ. 1st, 11 January 2023, n° 21-21168
Can the holder of a judgment rendered abroad request its exequatur in France if it is old or even very old? It is to this question that the Court of cassation responded in the affirmative in a decision of 11 January 2023.
In this case, a party was requesting the exequatur of a decision rendered in 2002 by the Office of prosecutions of the district of Lausanne (Switzerland) acting on the default of assets of its adversary.
By decision of 15 June 2021, the Court of appeal of Aix-en-Provence granted the request for exequatur despite the antiquity of the judgment.
The party opposing the exequatur then formed an appeal in cassation by sustaining that the execution in France of a foreign decision would be subject to the French law regarding the prescription and that by retaining that the delay of prescription of the claim noted by the act of default of assets was, according to the Swiss law, of twenty years counting from the issuance of the act of default of assets, the Court of appeal of Aix-en-Provence would have applied in an erroneous manner the Swiss law to the detriment of the French law.
The Court of cassation rejects the appeal and validates the analysis of the Court of appeal of Aix-en-Provence having pronounced the exequatur of the Swiss judgment of 2002.
By visa of article 3 of the Civil code, the Court of cassation posits the following rule in a principle expectation brought to make jurisprudence:
“If the rules of prescription of the State of origin are susceptible of affecting the character enforceable of the judgment and, consequently, the interest to act of the requester for exequatur and if those of the State requested are susceptible of affecting the execution forced of the judgment declared enforceable, in contrast, the action for exequatur itself is not subject to any prescription.”
In the species, given that the requester has introduced a procedure of exequatur, this one is not prescribed and the judgment of default of assets Swiss rendered in 2002 can be recognized in France.
This important decision opens the way to the exequatur in France of decisions of justice foreign old under the reserve of the interest to act of the requester on which depends the character enforceable of the judgment in the country of origin.
Thus, before requesting the exequatur of an old judgment which could not be refused to him for this sole reason at the stage of the analysis of the well-founded of the action, its holder must verify, at the preliminary stage of the admissibility of his request, that the judgment is still enforceable in the country in which it has been rendered.