Limitation Period for Liquidation Action and JEX Competence

Extract

[...] * Minority opinion more nuanced : PERROT, Each day of non-execution increases the potential quantum. To be rigorous legally, one must create a claim per day. But excessive complexity, not very compatible with contemporary legal security requirements. * In the logic of the Eurozone: one guarantee of the rule of law. ? ECHR: explicitly allows for the use of financial constraint mechanisms intended to ensure execution when it's simple, it's a guarantee of the rule of law ? ECJ: It uses itself in its JP application art 260 TFEU. [...]

[...] * Scope = decision published in the Bulletin ? On abusive reluctance (1231-6 + 1240): time spent + damage + prejudice > Subjective / Sovereign Assessment II/ Critique The strengthening of the security of jurisdiction (astreinte) The Court highlights that the penalty does not create a series of filtered claims individually but a single claim resulting from the obligation that falls on the D whose execution has been delayed. - Simplicité and State of debt (Fondement of the solution, which contributed to the solution) : * Opinion of the doctrine, a simplicity source of security : Conception very majoritarian. [...]

[...] Civ May 2016: progressive extension of its jurisdiction to accessory claims arising from non-execution (e.g. interest on arrears), as soon as these claims are related to the execution of the title ? These decisions reflect a dynamic conception of the JEX, which no longer content itself with a purely material role - Contribution of the judgment. * Role of the JEX : Competence of D-I based on the abusive resistance of D to the execution of TEX supervise, ensure the effectiveness of judicial decisions knows csq harmful resulting from the failure of execution ? [...]

[...] The attachment conceived as a a pressure mechanism : In a similar way, GUINCHARD insists on the functional dimension of the constraint = it is not turned towards compensation, but towards pressure. From then on, its liquidation falls more under a judicial appraisal than a simple arithmetic calculation. Rudy Laher: is translated formally by a request for justice and not by the implementation of a MEF, corresponds undoubtedly to the second. ? This majoritarian doctrinal approach converges towards the adopted solution: the constraint does not generate a plurality of autonomous claims, but a potential obligation whose consistency is set globally. [...]

[...] * Guarantee of a fair trial by the ECHR: JP consistently considers that the right to a fair trial (Art 6 §1) includes the right to definitive execution - Authority (effect) : * Strengthening the authority of judicial decisions : allows the C to obtain, before a specialized jurisdiction, a complete compensation for the prejudice of non-execution. * Csq of strengthening: protection of the C - The solution confers a more complete role to the JEX in the repair of the prejudice caused by the persistent non-execution. This contributes to the coherence of an dt of execution more protective for the C (cf. TD - Favors the application of OP rules, particularly those of the CPCE. It belongs to JEX, as the case may be by default, applies the relevant OP rules. [...]