JEX, TEX, jurisdiction, validity, Court of Cassation, Civil Execution Proceedings, COJ, enforcement judge, competence, banking law
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Abstract
Extract
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Abstract
The judgment clarifies the competence of the JEX in ruling on the validity of TEX, reaffirming its broad jurisdiction.
Extract
[...] The judge may need to rule on a question of substance, in order to declare the validity of a TEX or not. However, the JEX is sometimes limited by the decisions of the judges of the fact ? It cannot challenge a TEX composed of a court decision (Cass., Civ., 2ème May 2021) ? search for consistency between jurisdictions. Influence of the CJEU on the competence and office of the JEX: SPV Project judgment: the JEX, of its own motion, examines whether there are abusive clauses in the contract ? [...]
[...] The affirmation, in the commented judgment, of the competence of the JEX, progressively developed by the case law A. A clarification on the office of the judge, in accordance with the previous case law of the Court of Cassation JEX: relatively recent institution (1991 reform) ? it was necessary to delimit the competences of this new jurisdiction, as well as its powers: - When can a litigant bring a case before this judge? - What are the powers of this judge? Art. L. 213-6 COJ: exclusive competence of the JEX ? [...]
[...] Research for a functional justice more than formal : TEX ? The functional approach to TEX has already been affirmed and consecrated by the case law of the Court of Cassation. We can find the same idea in this judgment, with a search for 'the spirit of the text': opening up the powers of the JEX to have an operational and effective solution. Consistent jurisprudence between the chambers : request for an opinion to the Commercial Chamber of the Court of Cassation to ensure good interpretation and good application of the CMF. [...]
[...] strengthening the role of the JEX, with the possibility for it to rule on matters of substance. In doctrine (JEULAND), the question has been raised as to the scope of this possibility for the JEX to go as far as precision and specificity of the matter. Is it to allow for the respect of the obligation to apply EU law? With the commented judgment, we have another illustration of the possibility for the JEX to rule on the validity of a TEX, according to a special text relevant to banking law: reaffirmation of the broad competence of the JEX, not limited to only questions of execution. [...]
[...] broad approach to the competence of the JEX by the Cassation Court II. The solution of the Cassation Court: the search for procedural efficiency, to the detriment of a strict delimitation of the powers of the judges A. A solution in favor of procedural efficiency and good administration of justice Procedural efficiency: - Concentration of the contentious: this allows the debtor, often in a financially unstable or difficult position, to centralize its means before the JEX, and not to have to re-seize a judge at the bottom to contest the validity of the TEX, including if questions of substance are at stake. [...]
