FRANCE Law and Practice Contributed by: Thierry Marembert, Cécile Labarbe and Céline Serpagli, Kiejman & Marembert
6.4 Liability for Damages for the Applicant
6.6 Third Parties and Injunctive Relief Like the compulsory production of documents located in the hands of a third party, provisional measures can also be obtained against third parties (for example, a provisional attachment on the wages of a defendant might be enforced directly in the hands of their employer). 6.7 Consequences of a Respondent’s Non-compliance If a respondent fails to comply with the terms of an injunction, there is no such thing as contempt of court but the respondent may incur punitive measures called penalty payments ( astreinte ). Proceedings differ, depending on each type of jurisdiction. A common characteristic is that pro- ceedings start with the filing of a writ (or a form in certain instances), followed by the exchange of written submissions and evidence by the par- ties before a hearing where oral arguments take place. Whereas administrative proceedings tend to be based mainly on written materials (oral argu- ments being limited), judicial proceedings are based on filing submissions and evidence, con- cluding with oral arguments at a dedicated hear- ing in front of a panel of either three judges or a single judge. 7. Trials and Hearings 7.1 Trial Proceedings However, and except for criminal trials, oral argu- ments are generally limited to one hour or two, without involving witnesses or experts at trial. In some courts (such as tribunaux judiciaires ), each party will generally present its closing argu- ment through its attorney with minimal interven-
If the defendant successfully later discharges the injunction (requesting the lifting of the conserva- tory attachments or appealing and overturning the référé order ), the boomerang effect could be harsh, and the applicant could be held liable for the damages suffered by the respondent. Therefore, the applicant would have to: • reimburse the sums they provisionally obtained; • compensate for all the harmful consequenc- es; • sometimes pay all the legal fees; and • potentially be sentenced to pay damages for abusive proceedings. That is why the provisional measures are said to be “at the risk and expense of the applicant”. As a result, the applicant can be required to provide securities (a deposit, a guarantee or a security) in some instances. The respondent can avoid provisional enforce- ment from the applicant by lodging cash or securities themselves (a bank guarantee of the amount of damages would suffice to lift a provi- sional attachment). 6.5 Respondent’s Worldwide Assets and Injunctive Relief In principle, injunctive relief is ordered by the judge where the measure is enforced. On an exceptional basis, it can also be granted against assets of the respondent located in foreign countries, under certain conditions (if the pre- cautionary attachment is brought at the same time against the debtor’s assets both in France and abroad).
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