The harmony of Franco-Polish commercial relations is disrupted by the fact that French counterparties are regarded as unreliable and dilatory payers who tend to settle foreign creditors’ claims only as a last resort.
In most cases, the provisions of the contract concluded with the French business partner impose the jurisdiction of French courts. Against this background, it is difficult for a Polish entrepreneur to assess the chances of recovering his debt in France, and the costs involved in initiating and pursuing legal proceedings in France.
Is it necessary to send a demand for payment before going to court in France?
Yes, French courts require proof of efforts to reach an amicable settlement with the debtor (defendant), on pain of rejection of the claim. At the same time, the absence of any response from the debtor to the demand for payment addressed to him prior to the trial will be interpreted by the French courts as proof that the claimant’s claim is not contested.
While amicable actions can be taken by the creditor (claimant) alone, the judicial enforcement of claims always requires the support of a specialized law firm in France.
Who judges in French courts, and is it necessary to have a representative (lawyer) in the case?
In French commercial courts, only lay judges elected by business professionals rule. Only in the second instance is the case heard by a professional panel of the Chamber of Commerce of the Court of Appeal.
When the value of the subject of the dispute exceeds 10,000 euros, the parties are obliged to be represented by a lawyer. The plaintiff’s lawyer draws up the petition, which is served on the debtor (defendant) by a bailiff paid for by the plaintiff (creditor). The plaintiff’s lawyer then sends proof of service of the declaration to the court clerk’s office. On receipt of the declaration, the defendant must appoint a lawyer, who prepares and sends to the plaintiff’s lawyer a written procedural reply with evidence.
In cases worth less than €10,000, the parties may act without a lawyer. In this case, the trial is oral (there is no compulsory exchange of pleadings). However, evidence in support of their claims must be presented in writing.
Is it necessary to be present at a hearing in France?
In France, there is no examination of witnesses or parties at civil or commercial court hearings, but the court does take note of their written statements. Witnesses handwrite their statements on a special official form (CERFA), enclosing a copy of their identity card. These statements are then presented by the parties’ lawyers in court, along with the rest of the evidence.
ATTENTION: French courts do not hold hearings or cross-examine witnesses by electronic means – such as Microsoft Teams or Zoom.
The written evidence gathered is of paramount importance, given the formalism of the procedure – hence the importance of the amicable (pre-litigation) phase of the procedure. The following must be submitted to the court: copies of the contract concluded, unpaid invoices and proof of their dispatch, unsuccessful reminders (e-mails, proof of telephone calls, etc.).
Is it necessary to produce original documents in court in France?
No. A French court will not require the production of original documents, unless the adversary disputes their reliability. However, sworn translations of evidence into French will be required (whereas some commercial courts, particularly in large urban centers, accept English versions of documents).REMARQUE : dans les procédures judiciaires françaises, le principe dit de la forclusion des preuves (c’est-à-dire un délai pour la présentation des preuves, après lequel le tribunal ne les acceptera pas) ne s’applique pas. En France, de nouvelles preuves peuvent être envoyées à l’avocat de la partie adverse jusqu’à la fin du procès.
How much do legal proceedings cost in France?
In accordance with the principle of access to justice, the costs of legal proceedings are limited to :
a fee to cover the costs of the bailiff who serves the claim on the opposing party at the plaintiff’s request;
court fees for initiating proceedings, which do not depend on the value of the subject of the dispute and amount to €70 (in ordinary courts, the initiation of proceedings is exempt from court fees);
the costs of any bailiff’s reports (e.g. in the event of failure to draw up a report on the acceptance of work) or legal expertise (e.g. in the event of a dispute over the quality of the work carried out) – if such action is necessary;
attorney’s fees – determined contractually by the parties, depending on the specific features and complexity of the case.
The court orders the reimbursement of procedural costs [points 1), 2), 3)] to the losing party, and has the option of moderating the reimbursement of attorney’s fees (point 4), taking into account the principles of equity and the debtor’s economic situation.
In such cases, it is advisable to secure the claim first.
What’s the point of securing a claim?
Before starting legal proceedings, you should also think about securing your claim, especially if large-value claims are involved and the debtor’s financial situation is precarious.
To this end, you should ask the president of the commercial court for authorization to temporarily seize the debtor’s bank accounts or other assets. If, at this stage, the judge recognizes the uncontested nature of the claim and the potential threat to its subsequent enforcement, authorization to seize the debtor’s assets is granted even before a writ of execution is obtained.
Thereafter, however, the creditor is obliged to initiate legal proceedings within one month of the debtor’s assets being placed under security, failing which the security procedure will be null and void (loss of security).
Lidia MAILLIET-WOZNIAK
Avocat/adwokat
www.lmwavocat.com
