Cass. Civ. 1st, 17 February 2021, n° 19-20.264, SA CONSORTIUM DE REALISATION (CDR) / SARL TAHAL CONSULTING ENGINEERS LTD
The “emanation of State” is a concept permitting to extend to an entity, which is not the State itself, the immunities of which the State disposes, and notably the immunity of execution.
Indeed, even if it is endowed with a moral personality distinct from that of the State, an entity can be considered as an “emanation of State” if it is controlled by the State and if it accomplishes a public service mission.
In the case submitted to the Court of cassation, the company TAHAL CONSULTING ENGINEERS LTD, holder of an arbitral award condemned the company CDR (Consortium de Réalisation) to pay it a certain sum.
The company CDR, entity created in order to manage the liabilities of the Credit Lyonnais, is a structure of state defeasance.
Wishing to execute the arbitral award, the company TAHAL practiced an attachment on the accounts of the company CDR.
The company CDR contested this attachment, invoking its quality of “emanation of State”, and claimed the benefit of the immunity of execution.
The Court of appeal of Paris rejected the claims of the company CDR, considering that it did not constitute an “emanation of State”.
The company CDR then formed an appeal in cassation.
The Court of cassation, in its decision of 17 February 2021, casses the decision of the Court of appeal of Paris.
It states: “In order to characterize the quality of emanation of State of the company CDR, the Court of appeal should have researched if the State did not exercise on this company a control such that it could not act independently of the State and if it did not pursue, under its control, a mission of public service.”
The Court of cassation recalls the criteria permitting to determine the quality of “emanation of State”:
- A control of the State on the entity.
- The accomplishment of a mission of public service.
This decision is interesting because it defines the contours of the notion of “emanation of State” and confirms that this status is not attributed automatically, but depends on a precise analysis of the relations between the State and the entity concerned.
This jurisprudence will be followed with attention, as it has significant consequences for the entities which, like the company CDR, are confronted with the difficulties of execution of arbitral awards.