The purpose of an action for unenforceability (action en inopposabilité) is to deprive a foreign judgment of any effect in France.
Similar to an action for exequatur, the action for unenforceability of a foreign judgment allows for the review of a foreign judgment’s regularity through principal proceedings.
The difference between the two procedures lies in the fact that the first aims to establish the regularity of the foreign judgment in France, while the second seeks to have a foreign judgment declared irregular, and therefore unenforceable, on French territory.
The action for unenforceability, the ultimate goal of which is to deprive a foreign judgment of all effect in France, was explicitly established by the Court of Cassation in its Bielski ruling (Civ. 1st, February 10, 1971, RC 72.123).
In this ruling, the Court of Cassation established the principle of standing (intérêt à agir), and therefore the admissibility of a party’s request seeking to protect themselves against the effects of a foreign judgment: “Mr. X could have an interest in protecting himself against the effects that the foreign judgment could have, without it being declared enforceable.”
This standing in an action for unenforceability, and thus its own legal regime, were confirmed by the Court of Cassation (Civ. 1st, October 4, 2005, no. 02-20258).
The action for unenforceability, also called a “denial” action (action dénégatoire), is therefore “antithetical” to the exequatur procedure (Civ. 1st, December 19, 1995, no. 93-18082).
Despite this independent legal regime, the merits of the action for unenforceability are determined by the verification of exequatur conditions.
It is in this sense that the Paris Court of Appeal ruled (CA Paris, October 16, 2003, RG no. 2002/15712): “Considering that the action for unenforceability, which tends to have a judgment declared irregular in France with regard to the conditions of effectiveness required of foreign decisions in our country, is admitted under the same conditions as exequatur.”
In the event that no judicial cooperation convention binds France with the foreign State from which the judgment originates, the conditions (for exequatur and therefore) for unenforceability in France of the foreign judgment will be those of the Cornelissen jurisprudence common law (Civ. 1st, February 20, 2007, no. 05-14082): “To grant exequatur outside of any international convention, the French judge must ensure that three conditions are met, namely the indirect competence of the foreign judge, based on the connection of the dispute to the court seized, compliance with substantive and procedural international public policy, and the absence of fraud against the law; the exequatur judge does not therefore have to verify that the law applied by the foreign judge is that designated by the French conflict of laws rule.”
Thus, if a single one of the conditions required for the exequatur of the foreign judgment is missing (competence, compliance with public policy, absence of fraud), it will be declared unenforceable in France.
In cases where the foreign State in question has ratified a judicial cooperation convention with France (these States being quite numerous), the failure of a single one of the conditions (generally numbering five or six, against three in common law) will result in the unenforceability of the judgment in France.