Consideration of two cases decided in the French Cour de Cassation, “Prieur” (23 May 2006) and “Fercometal” (22 May 2007)
”Article 15 of the Civil Code only establishes the non-exclusive competence of the French courts. It is inappropriate to exclude indirect competence of a foreign court where the dispute is inherently linked to the country to whose courts a matter has been submitted if the choice of jurisdiction was not artificial.” (Prieur case, Cass. 1ere ch.civ. 23 mai 2006)
”Article 14 of the Civil Code gives a French claimant a mere option and does not provide an exclusive competence for his benefit to the exclusion of the indirect competence of a foreign court to which a matter has been submitted if the choice of jurisdiction was not artificial.” (Fercometal case Cass. 1ere ch.civ.22 mai 2007.)
Both articles establish the competence of the French courts on the basis of the French nationality of one of the parties, whether they are the claimant or defendant. The articles are excluded in matters already governed by international conventions or EC legislation.
Article 14 permits a French claimant, should he so elect, to escape submission to a foreign jurisdiction in which the defendant resides by, instead, submitting to the jurisdiction of the French courts.
Article 15 permits a foreign claimant to bring his French opponent before the French courts. However, the power afforded to the foreign claimant to bring a French national before the French courts has always been, in the eyes of jurisprudence, an exclusive competence of the French court. In other words, it permits a French litigant, already found liable abroad, to block the enforcement in France of that foreign decision by invoking the exclusive authority of the French courts in applying Article 15.
Articles 14 and 15 only apply when one of the parties to a dispute, whether a natural person or body corporate, is of French nationality. In scope, they may be applied to all matters, save for real estate claims, shared property claims where the property is located abroad, as well as to methods of enforcement practised outside France (Cass. 1ere civ. 27 mai 1970, rev.crit. DIP 1971, p113). When applied in circumstances under which the application of normal rules as to jurisdiction would suggest the submission of a matter to the jurisdiction of foreign courts, the jurisdiction of the French courts is preserved. Thus, where a French person is the victim in a traffic accident which occurs abroad, he may bring the perpetrator of the accident before the French courts even though the application of normal rules as to jurisdiction would suggest the submission of the matter to the jurisdiction of the courts of the country where the perpetrator resides or where the accident took place. In summary, then, articles 14 and 15 establish the jurisdiction of French courts in every matter to which one of the parties is French.
The parties may always elect to seek the application of articles 14 and 15, and a judge will be bound to apply them when such election has been made. Indeed, the court cannot refuse jurisdiction even if the matter in question has stronger links to a country other than France.
The most questionable consequence of these exorbitant jurisdictional powers is that they allow the French litigant to defeat a foreign decision, which, whilst perfectly legitimate, was not made in his favour. In contracts of an international nature, foreign parties frequently require their French co-contractors to expressly waive their rights under the two articles. Reflected in negative foreign press, articles 14 and 15 have sometimes led to a poor impression of French rules as to jurisdictional conflict (B. Ancel, Y. Lequette, Grands arrêts DIP., Dalloz, 2006, 5ème édition, p. 764).
Going forward, article 15 will not be interpreted as being sufficient, in itself, to call into question the jurisdiction of a foreign court if the matter in hand is inherently linked to that country. As such the foreign court will be afforded the same jurisdictional competence as if the matter had been submitted to a
French court. The privilege of indirect competence, which afforded the French litigant an opportunity to “thwart” the enforcement of a foreign decision, has now vanished (Cass, 1ère ch. civ., 23 mai 2006, D. 2006, p. 1364, chr. B. Audit). So too the prerogative under article 14, being applicable only where a French claimant seeks its application. In contrast, the judge need no longer raise it unless the French claimant has sought its application (Cass, 1ère ch. civ., 22 mai 2007, Rev. crit. 2007, p. 610, note H. Gaudemet-Tallon).
Most legal commentators anticipated that these two articles would no longer be interpreted as bringing about exclusive competence. And with good reason: it was entirely misguided to refuse to acknowledge or enforce a foreign judgment on the exclusive basis that the defendant was French. The rule imposed by article 15 had, over the course of time, become a “compulsory” favour granted to French parties against foreign litigants (in that the foreign litigant was forced to plead in France to obtain the recognition and enforcement of any decision that was detrimental to his French counterpart).
Nevertheless, one must agree that, following the Simitch case (Cass, 1ère ch. civ., 6 février 1985, D. 1985, p. 469, note J. Massip), indirect competence is established as soon as there is an inherent link between the dispute and the court giving the decision.
Two situations arise from this:
1/ Either the dispute is inherently linked to the foreign court (residence of the parties, location of assets…) and, in such case, the mere presence of a French litigant changes nothing as regards an assessment of the objective competence of that court. (After all, foreign litigants are not allowed to use these grounds to escape the jurisdiction of a French court, who already has jurisdiction on the application of objective criteria),
2/ Or the jurisdiction of a foreign court has been granted by reference to tenuous criteria and, as such, its decision will not be recognised in France, since its jurisdiction will be regarded as groundless.
Article 15 would therefore have no role to play.
Thank goodness !