Swiss Bankruptcy and Eviction in France: What the Court of Cassation Says

Imagine: you own a flat in Saint-Paul-lès-Dax, and your tenant has not paid rent for months. You learn that he is the subject of bankruptcy proceedings in Switzerland. A Swiss enforcement office contacts you, claiming it wants to sell the property to repay creditors. But can it evict your tenant by summary proceedings, without going through the French procedure? That is precisely the question decided by the Court of Cassation in a judgment of 30 October 2006. And the answer is clear: no, a Swiss office cannot circumvent French rules.

This decision is of interest to all landlords, tenants and property professionals. It reminds us that, even when a foreign judgment is recognised in France, the methods of enforcement remain subject to the law of the forum, i.e. French law. In other words, you cannot evict someone in France without complying with the procedure for enforcement by sale of immovable property provided for by our law.

But what does that actually change? If you are a landlord and your debtor is bankrupt abroad, you cannot hope for a speedy eviction by summary proceedings. You will have to follow the standard route: enforcement by sale of immovable property, forced sale, then eviction. This is not bad news; it is a safeguard for the debtor, but also for you, because the French procedure protects your rights.

The facts: a story like many others

The story begins in Switzerland, in Nyon. The Nyon Enforcement and Bankruptcy Office (Office des poursuites et des faillites de Nyon, OPF) is responsible for managing the bankruptcy of a person, Ms X. This person owns a flat in France, in the Chambéry area. The OPF, relying on a Swiss bankruptcy judgment recognised as enforceable in France, wants to sell this flat to repay creditors. But the flat is occupied by the debtor herself, Ms X. In order to sell free of occupation, the OPF applies by summary proceedings (urgent procedure) for the eviction of Ms X.

The Chambéry Court of Appeal, seised at first instance, refused this application on 3 June 2003. Why? Because eviction is not a direct enforcement measure of the bankruptcy judgment: it presupposes that the property is first seized and sold according to French rules. The OPF appealed to the Court of Cassation, arguing that the Swiss judgment gave it the right to dispose of the assets and therefore to evict the occupier.

The appeal was dismissed by the Court of Cassation on 30 October 2006. The supreme judges confirmed that the OPF must first initiate enforcement proceedings by sale of immovable property in France, then, after the sale, apply for eviction if necessary. In short, one cannot circumvent French rules on the pretext of a foreign judgment.

The reasoning of the court — analysed

The reasoning of the Court of Cassation is based on a fundamental principle of private international law: the enforcement of a foreign judgment is governed by the law of the forum, i.e. the law of the country where enforcement takes place. In this case, the Swiss bankruptcy judgment is recognised in France (it is enforceable), but the methods of enforcement (seizure, eviction, etc.) must comply with French law.

The Court relies on Article 509 of the Code of Civil Procedure (relating to exequatur, the procedure that makes a foreign judgment enforceable in France) and on the rules of enforcement by sale of immovable property (former Articles 2192 et seq. of the Civil Code, now Articles L.311-1 et seq. of the Code of Civil Enforcement Procedures). It recalls that eviction is only a consequence of the forced sale, not an autonomous measure. In other words, a debtor can only be evicted after his property has been seized and sold.

The Court rejects the OPF's argument that the Swiss judgment transfers ownership of the assets to the office. It clarifies that the transfer of ownership is not automatic: it requires an enforcement procedure in France. The lower court (the Court of Appeal) therefore did not have to consider whether eviction was necessary before seizure: it correctly applied the law.

This decision is not a departure: it confirms established case law. What few people know is that the same principle applies to any foreign judgment: an American, German or Swiss creditor must follow French procedures to seize immovable property in France. However, note: recognition of the foreign judgment is an essential prerequisite, but it does not dispense with complying with local formalities.

What this means for you — practically

If you are a landlord in Mont-de-Marsan: You have a tenant who has stopped paying and is bankrupt in Switzerland. You think you can apply for his eviction by summary proceedings? No. You must first obtain an enforceable title in France (for example, a judgment finding termination of the lease), then initiate enforcement by sale of immovable property if the tenant owns the property. Eviction will only occur after the sale. In practice, expect 6 to 12 months of proceedings, compared to 2 months for a standard summary application.

If you are a tenant: This decision protects you. You cannot be evicted overnight by a foreign creditor. Even if your landlord is bankrupt, the creditor must comply with the time limits and formalities of French law. You have the right to remain in the premises until the sale of the property, and even after, if you are a tenant in good faith (unless the lease is terminated).

If you are a foreign creditor: You must absolutely consult a French lawyer before taking action. An application for eviction by summary proceedings will be dismissed, and you will waste time and money. It is better to initiate enforcement by sale of immovable property directly. undefined, I have come across cases where Swiss creditors attempted this route and had to start over, prolonging the proceedings by several months.

Illustrative example: In Saint-Paul-lès-Dax, a flat valued at €150,000. The Swiss creditor initiates summary eviction proceedings (cost: €2,000). The application is dismissed. He must then initiate enforcement by sale of immovable property (cost: €5,000) which takes 9 months. Total: 11 months and €7,000 in costs, whereas an immediate seizure would have cost €5,000 and taken 9 months. Moral of the story: it is better to be well informed in advance.

Four tips to avoid this type of dispute

• Check your debtor's situation. Before renting or selling to a Swiss national, ask for a criminal record extract or a certificate of non-bankruptcy. This will save you from surprises.
• Have a solid lease drafted. A well-drafted tenancy agreement, with a forfeiture clause in case of non-payment, will make it easier to obtain an enforceable title in France. Do not hesitate to consult a lawyer lawyer.
• In case of foreign bankruptcy, consult a lawyer immediately. Do not try to act alone. A lawyer will advise you on the appropriate procedure (enforcement by sale of immovable property, etc.) and save you from costly mistakes.
• Consider negotiation. Before incurring costs, try to reach an amicable agreement with the debtor or the foreign creditor. An amicable sale is often quicker and less expensive than a forced sale.

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Further reading: related case law and developments

This decision is part of a consistent line of the Court of Cassation. Already, in a judgment of 19 March 1997 (No. 94-21.870), the Court had held that a foreign judgment could not dispense with the French procedure for enforcement by sale of immovable property. More recently, the Court of Cassation reiterated this principle in a judgment of 8 July 2020 (No. 19-16.754) concerning a Belgian judgment. The trend is clear: French judges protect their enforcement procedures, even in the face of recognised foreign decisions.

For the future, with globalisation, cross-border bankruptcies are becoming more frequent. European Regulation No. 2015/848 on insolvency proceedings harmonises certain rules, but leaves it to Member States to determine the enforcement modalities. This means that the principle of the 2006 decision remains relevant. Foreign creditors must therefore adapt and seek assistance from local professionals.

In practice: what to do

1. Obtain recognition of the foreign judgment in France (exequatur) if not already done. This step is essential to be able to act.
2. Initiate enforcement by sale of immovable property before the competent judicial court (that of the location of the property). You will need to serve a formal demand for payment, then apply for a forced sale.
3. Apply for eviction after the sale by auction. Eviction will be ordered by the enforcement judge, with a possible grace period for the occupant.
4. Anticipate costs. Expect about €5,000 to €10,000 in procedural costs (lawyer, bailiff, publication) for enforcement by sale of immovable property. These costs are recoverable from the sale price.

Are you in a similar situation? A 30-minute initial consultation with Maître Zakine (€45) may save you months of proceedings — and often much more. Book an appointment →