In the event that it is necessary to proceed in France against a debtor for the recovery of due debts, and if the out-of-court attempts are not useful, it is possible for the creditor to resort, alternatively, to:

– injunction order (for credits exceeding € 1.000-1.200 and less than approximately € 15.000);

– référé procedures (generally for higher credits); or

– ordinary judgement procedure.

The référé procedures, in particular, are a frequently used tool in France, as they allow to quickly reach a decision with judgment times ranging from 6 months to a maximum of 1 year, by devolving the resolution of the dispute to a single judge.

Following a public hearing, the judge issues an immediately and provisional executive order (i.e. the creditor can request immediate execution, despite a possible appeal by the debtor).

However, this tool can only be used in a limited number of cases, including:

i. the référé d’urgence: for urgent cases, the judge can take all measures not seriously contestable by the debtor or otherwise justified by the presence of a dispute between the parties;

ii. the référé conservatoire: the judge adopts precautionary measures to prevent damage;

iii. the référé injonction: having the purpose of ordering the execution of an obligation;

iv. the référé expertise/probatoire: for the decision of probative measures, provided that the trial has not yet started;

v. the référé provision: in which the judge is defined as a “judge of evidence”, as he issues an order that condemns the debtor to pay sums that are not adequately contestable by the same debtor.

This référé provision, in particular, requires the judge to express himself on a certain and collectable credit, since in this case an urgent situation is not necessary at the basis of the request.

However, if the debtor-defendant disputes the credit claimed by citing valid reasons that materialize in serious disputes of the creditor-plaintiff’s questions, such as, for example, a missed or incomplete delivery, defects in the goods, etc., the creditor-plaintiff cannot resort to the judgment of référé (the judge of the référés being in this case incompetent for the reasons mentioned above).

In this case, an ordinary procedure must therefore be instituted before the trial judge.

In conclusion, after careful assessment of all the circumstances of the case, to use the référé procedure before the French courts to recover a commercial credit against a debtor based in France, it is necessary that the creditor has a certain and due credit and, moreover, that there are no valid reasons (“serious disputes”) that the debtor can oppose to the creditor to contest the credit in question. In this case, it will be possible to resort to the urgent judicial procedure in question and to obtain a provisionally enforceable judicial order in a short time, that will allow to proceed with the attachment of the debtor’s assets.

Marcello Mantelli
Avvocato in Milan and Turin

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