Attachment under French Law: Conservatory Attachment and Judicial Security Measures

I. Concept and Legal Nature of Attachment under French Law

Attachment (saisie conservatoire) occupies a central position in French enforcement law as a preventive judicial mechanism designed to preserve the effectiveness of future enforcement proceedings. Unlike enforcement measures strictly so called, attachment does not aim at immediate payment or transfer of ownership. Its function is instead to immobilise assets belonging to the debtor in order to prevent their dissipation pending the outcome of litigation or the issuance of an enforceable title.

French law draws a clear conceptual distinction between conservatory measures (mesures conservatoires) and enforcement measures (mesures d’exécution). This distinction is codified in the Code des procédures civiles d’exécution (“CPCE”), which governs attachment primarily in Articles L. 511-1 et seq. Attachment belongs to the former category and operates in anticipation of enforcement, often before any judicial decision has been rendered on the merits of the claim.

The conservatory nature of attachment explains its exceptional character. It constitutes a serious interference with the debtor’s right to freely dispose of their property, protected under both domestic constitutional principles and Article 1 of Protocol No. 1 to the European Convention on Human Rights. As a result, attachment is subject to strict legal conditions, judicial oversight, and subsequent procedural obligations imposed on the creditor.

From a functional standpoint, attachment serves as a risk-management tool for the creditor. It transforms the uncertainty of future enforcement into a secured position by freezing assets at a moment when the debtor is still solvent or in possession of valuable property. In this respect, attachment is not merely ancillary to litigation but often determines its practical outcome.

II. Systematic Position of Conservatory Attachment in French Enforcement Law

French enforcement law is built around a sequential logic. Enforcement measures presuppose the existence of an enforceable title (titre exécutoire), such as a final judgment, a notarial deed with enforceable formula, or an enforceable settlement. Conservatory attachment, by contrast, operates upstream of this logic. Article L. 511-1 CPCE expressly allows attachment to be carried out even in the absence of an enforceable title, provided that certain substantive and procedural requirements are met.

This positioning gives attachment a hybrid nature. On the one hand, it is not a provisional measure in the procedural sense, as it does not merely regulate the conduct of proceedings. On the other hand, it is not an enforcement measure, as it does not lead directly to payment or attribution. It is best understood as a form of anticipatory enforcement, justified by the risk of insolvency or asset dissipation.

The French Cour de cassation has consistently emphasised this intermediate nature. Attachment is neither punitive nor compensatory. Its legitimacy rests solely on the necessity to preserve the creditor’s future rights. Any use of attachment for purposes of pressure, intimidation, or strategic imbalance exposes the creditor to liability, regardless of fault, as discussed further below.

Within this system, conservatory attachment coexists with other judicial security mechanisms, notably provisional judicial mortgages and provisional pledges (hypothèque judiciaire provisoire, nantissement judiciaire provisoire). These instruments share the same objective—securing future payment—but differ in their technical implementation and legal effects.

III. Substantive Conditions for Conservatory Attachment

A. A Claim Founded in Its Principle

The first substantive condition for conservatory attachment is the existence of a claim that is “founded in its principle” (fondée en son principe), within the meaning of Article L. 511-1 CPCE. French law deliberately adopts a flexible approach to this requirement. The creditor is not required to establish a certain, liquid, and due claim. Nor is it necessary to demonstrate a definitive right to payment.

Case law has clarified that a claim may satisfy this requirement even if its amount has not yet been determined, including claims for damages arising from contractual breaches, tortious conduct, or unfair competition. The Cour de cassation has expressly held that the law does not require a “certain principle of claim”, but merely a sufficiently plausible legal basis (Cass. 1re civ., 2 February 1999, no. 96-16.718).

In practice, the judge exercises a prima facie assessment. The creditor must present elements demonstrating the legal plausibility of the claim, such as contracts, correspondence, unpaid invoices, or evidence of wrongful conduct. This assessment does not prejudge the merits of the dispute and does not bind the court subsequently seized of the substantive proceedings.

B. Circumstances Threatening Recovery

The second substantive condition is the existence of circumstances likely to threaten recovery of the claim. This requirement reflects the preventive nature of attachment. The creditor must demonstrate a risk that, absent immediate immobilisation of assets, enforcement would be compromised.

French courts interpret this condition pragmatically. Typical indicators include repeated payment incidents, unanswered formal notices, signs of financial distress, asset transfers, cessation of business activity, or credible information regarding impending insolvency. The threshold of proof is intentionally moderate in order to preserve the element of surprise inherent in attachment.

The Cour de cassation has repeatedly affirmed that the judge must not impose an excessive evidentiary burden on the creditor, as this would undermine the effectiveness of the measure (Cass. 2e civ., 5 December 2019, no. 18-15.050). The creditor is not required to demonstrate fraudulent intent on the part of the debtor; objective risk suffices.

However, the absence of any real threat exposes the attachment to challenge and may result in the creditor’s liability, even if the measure was authorised by a judge.

IV. Judicial Authorisation and Jurisdiction

A. Principle of Prior Judicial Authorisation

As a general rule, conservatory attachment requires prior judicial authorisation. This authorisation is obtained through an ex parte application (requête) submitted to the competent judge, without adversarial debate. This non-contradictory procedure is justified by the need to preserve the surprise effect of the measure.

The competent authority is ordinarily the judge of enforcement (juge de l’exécution) of the debtor’s domicile, pursuant to Article R. 511-2 CPCE. Where the debtor is domiciled abroad, jurisdiction lies with the judge of the place where the attachment is to be carried out, as recognised by consistent appellate case law.

In commercial matters, Article L. 511-3 CPCE offers an alternative. Prior to any proceedings on the merits, the creditor may apply to the president of the commercial court having jurisdiction over the debtor. In practice, commercial creditors frequently opt for this route, as commercial courts are often perceived as more familiar with business risks and enforcement strategies.

B. Content and Scrutiny of the Application

The application must set out, in a clear and substantiated manner, the elements establishing both the principle of the claim and the threat to its recovery. It must also precisely identify the assets targeted by the attachment and the provisional amount for which security is sought.

Importantly, the creditor is not required to justify the absence of adversarial proceedings. French case law firmly rejects any additional burden in this respect, holding that the very nature of conservatory attachment legitimises the non-contradictory procedure.

Once authorisation is granted, it is time-limited. The attachment must be carried out within three months of the authorisation, failing which the authorisation lapses automatically, pursuant to Article R. 511-6 CPCE.

C. Attachments Without Judicial Authorisation

French law provides limited exceptions allowing attachment without prior judicial authorisation. These include situations where the creditor holds an enforceable title, a non-final judicial decision, an unpaid cheque, an accepted and unpaid bill of exchange, an unpaid promissory note, or an unpaid written lease.

Even in such cases, the substantive conditions of a threatened recovery remain applicable. Courts have consistently held that an attachment carried out without judicial authorisation, but in the absence of any real threat to recovery, is abusive and exposes the creditor to liability.

V. Scope of Assets Subject to Conservatory Attachment

French law adopts a broad conception of attachable assets in conservatory matters. Pursuant to Article L. 511-1 CPCE, conservatory attachment may affect all movable property, whether tangible or intangible, belonging to the debtor. The decisive criterion is ownership, not possession. Assets may therefore be attached whether they are held directly by the debtor or by a third party acting as custodian, depositary, carrier, or debtor of the debtor.

Tangible movable assets include equipment, inventory, machinery, vehicles, and merchandise, regardless of whether they are located at the debtor’s premises or elsewhere. Intangible movable assets encompass receivables, bank account balances, shares, partnership interests, securities, and intellectual property rights with economic value.

Receivables constitute one of the most frequently targeted categories. A conservatory attachment may be effected on sums owed to the debtor by third parties, including commercial clients, tenants, or financial institutions. In practice, attachment of bank accounts is particularly effective, as it immediately renders the credited sums unavailable within the limits of the authorised amount.

Joint bank accounts present a specific difficulty. French case law considers that funds held in a joint account are presumed to belong jointly to all account holders. As a result, a conservatory attachment authorised against only one of the holders affects the entire balance. The non-debtor co-holder may seek partial release but bears the burden of proving that the attached funds constitute their exclusive property, a burden which courts assess strictly (CA Paris, 5 October 2000).

Intellectual property rights may also be subject to conservatory attachment, subject to procedural adaptations. Trademarks, for instance, may be attached through registration with the National Institute of Industrial Property, coupled with the drafting of technical specifications. Courts have recognised that such rights, though intangible, constitute assets of significant economic value capable of securing a claim.

Conversely, French judges lack jurisdiction to authorise the attachment of bank accounts located abroad, absent an applicable international convention or European regulation. This territorial limitation reflects the principle of sovereignty in enforcement matters, although it has been partially mitigated within the European Union through specific instruments.

VI. Legal Effects of Conservatory Attachment

The essential effect of conservatory attachment is the legal unavailability of the attached assets. Ownership remains vested in the debtor, but any act of disposal is prohibited. The debtor may neither sell, transfer, encumber, nor otherwise dispose of the attached property, whether voluntarily or involuntarily.

This unavailability operates erga omnes and binds third parties who become aware of the attachment. In the case of receivables, payment made by a third-party debtor to the principal debtor after attachment is ineffective as against the attaching creditor. Similarly, in the case of shares or partnership interests, the financial rights attached thereto, including dividends, are immobilised.

The unavailability effect is strictly limited to the amount authorised by the judge. Attachment exceeding the secured amount may be challenged as disproportionate and give rise to liability. This issue arises most acutely in the attachment of securities accounts, where the creditor may be unaware of the account’s total value at the time of attachment.

The Cour de cassation has consistently held that the creditor bears the risk of over-attachment. Even absent fault, the creditor may be ordered to compensate the debtor for losses caused by the immobilisation of assets whose value significantly exceeded the secured claim, particularly where market fluctuations result in depreciation that the debtor could not mitigate due to the attachment (Cass. 2e civ., 29 January 2004).

VII. Implementation of the Attachment by the Commissaire de Justice

Once judicial authorisation has been obtained, the creditor must instruct a commissaire de justice to carry out the attachment. The role of the commissaire de justice is central. They are responsible for identifying the assets, serving the attachment acts, and drafting the official record (procès-verbal de saisie).

The attachment must be executed within three months of the authorisation order. Failure to do so results in the automatic lapse of the authorisation, without the need for judicial intervention. In practice, creditors have a strong incentive to act promptly in order to preserve the element of surprise and to minimise the risk of asset dissipation.

The procès-verbal must comply strictly with statutory requirements. It identifies the parties, the legal basis of the attachment, the assets concerned, and the amount secured. Where attachment is effected in the hands of a third party, such as a bank, the third party is immediately bound by the unavailability obligation.

The debtor is not notified prior to the attachment. Notification occurs afterwards, when the commissaire de justice serves the attachment acts and provides copies of the judicial authorisation and the creditor’s application. This post hoc notification ensures respect for the debtor’s right to an effective remedy while preserving the preventive character of the measure.

VIII. Obligation to Initiate Proceedings on the Merits

Conservatory attachment is intrinsically provisional. It cannot subsist independently of proceedings aimed at obtaining an enforceable title. Article R. 511-7 CPCE therefore imposes a strict obligation on the creditor to initiate proceedings on the merits within one month of the attachment.

This obligation may be satisfied through various procedural avenues, depending on the nature of the claim. The creditor may initiate ordinary proceedings, summary proceedings for provisional payment, or, in certain circumstances, criminal proceedings with a civil claim where such proceedings are capable of resulting in damages.

French courts adopt a functional approach to this requirement. What matters is not the form of the proceedings, but their capacity to lead to a judicial determination of the creditor’s claim. Failure to initiate proceedings within the prescribed period results in the automatic lapse of the attachment, without the need for a judicial decision.

Where attachment has been effected in the hands of a third party, the creditor must also ensure that the third party is notified of the procedural steps taken, within a short statutory period. This requirement reinforces legal certainty and prevents prolonged immobilisation in the absence of substantive proceedings.

IX. Conversion of Conservatory Attachment into Enforcement Attachment

Once the creditor obtains an enforceable title, the conservatory attachment may be converted into an enforcement attachment. This conversion marks the transition from preservation to execution and enables the creditor to pursue actual recovery.

The nature of the conversion depends on the type of asset attached. Tangible movable assets are converted into seizure and sale, while receivables are converted into attachment-attribution, resulting in direct allocation of the sums to the creditor. Conversion must be formally notified to the debtor, who is afforded a limited period to challenge the measure before the enforcement judge.

Timing is critical. If insolvency proceedings are opened against the debtor before conversion, the conservatory attachment loses all effect. The attached assets fall back into the collective estate, and the creditor is relegated to the status of an unsecured claimant, subject to insolvency rules. By contrast, conversion effected prior to the opening judgment produces immediate attribution and escapes the effects of collective proceedings, as consistently affirmed by the Cour de cassation.

X. Interaction between Conservatory Attachment and Insolvency Proceedings

The relationship between conservatory attachment and collective insolvency proceedings is governed by a strict and unforgiving logic. French insolvency law is built upon the principle of equality among creditors, which directly conflicts with the individualistic logic underlying conservatory measures. As a result, timing is decisive.

Where insolvency proceedings—whether safeguard, judicial reorganisation, or liquidation—are opened before the conversion of a conservatory attachment into an enforcement attachment, the conservatory measure becomes ineffective. The attached assets are deemed to re-enter the debtor’s estate, and the attaching creditor loses any preferential position they may have expected to derive from the attachment. The attachment is treated as having produced no legal effect, and its mainlevée may be ordered as of right.

This solution has been consistently upheld by the Cour de cassation, which has held that conservatory attachment cannot survive the opening judgment of collective proceedings when conversion has not yet occurred. The rationale is clear: a conservatory attachment does not confer a real right, but merely a procedural advantage that evaporates once collective enforcement rules apply.

By contrast, where conversion into attachment-attribution or seizure-sale has been completed before the opening judgment, the situation is radically different. Conversion produces immediate effects of attribution, thereby removing the attached assets from the debtor’s estate prior to the commencement of insolvency proceedings. In such cases, the creditor retains the benefit of the conversion, and the insolvency proceedings do not retroactively affect the attachment.

This distinction underscores the strategic importance of speed. In practice, creditors who rely on conservatory attachment must actively monitor the debtor’s financial situation and proceed to conversion as soon as an enforceable title is obtained. Delay may result in the complete loss of the security achieved through attachment.

Special consideration must also be given to actions against guarantors. French law allows conservatory measures to be taken against personal guarantors even when the principal debtor is subject to safeguard proceedings. This exception reflects the autonomy of the guarantor’s obligation and allows creditors to preserve recourse against third parties notwithstanding collective proceedings affecting the principal debtor.

XI. Judicial Security Interests as Conservatory Measures

Conservatory attachment is not the only mechanism available to creditors seeking to secure future enforcement. French law also provides for judicial security interests, notably provisional judicial mortgages and provisional judicial pledges. These instruments share the same legal foundation as conservatory attachment and are governed by Articles L. 531-1 et seq. CPCE.

A provisional judicial mortgage allows a creditor to encumber an immovable asset belonging to the debtor. Unlike attachment, which renders assets unavailable, a mortgage permits the debtor to dispose of the property while preserving the creditor’s preferential right over the sale proceeds. This characteristic often makes judicial mortgages less intrusive and less exposed to claims of disproportionality.

The procedure requires prior judicial authorisation unless the creditor holds a qualifying title permitting registration without authorisation. Once authorised, the provisional registration must be published with the land registry and later confirmed by definitive registration after the creditor obtains an enforceable title. Failure to confirm the registration within the statutory time limit results in its lapse.

Judicial pledges operate similarly with respect to movable intangible assets, such as shares, partnership interests, or business assets. The pledge confers a right of preference and, in some cases, a right of follow-up, allowing the creditor to maintain security despite changes in ownership.

These judicial security interests are often preferable where the value of the secured asset is stable or easily identifiable, and where immobilisation would cause disproportionate harm to the debtor’s business. From a strategic standpoint, they may also reduce the creditor’s exposure to liability arising from over-attachment.

XII. Remedies Available to the Debtor

French law provides the debtor with several remedies to challenge or mitigate the effects of conservatory attachment. These remedies reflect the balance between the creditor’s interest in securing payment and the debtor’s right to property and economic freedom.

The primary remedy is an application for mainlevée, which seeks the removal of the attachment. Jurisdiction lies with the judge who authorised the measure or, where no authorisation was required, with the enforcement judge of the debtor’s domicile. The debtor may challenge the attachment on multiple grounds, including the absence of a plausible claim, the lack of any threat to recovery, procedural irregularities, or disproportionality.

The burden of proof lies with the creditor. Even where the attachment was authorised judicially, the creditor must demonstrate, upon challenge, that all statutory conditions were satisfied at the time the measure was taken. Courts assess these challenges rigorously, particularly where the attachment has caused significant economic disruption.

An alternative remedy is cantonnement, which allows the debtor to request a limitation of the attachment’s scope. Where the debtor demonstrates that the value of the attached assets significantly exceeds the amount secured, the judge may restrict the attachment to a reduced set of assets or substitute alternative security. Cantonnement reflects the principle of proportionality and is frequently granted in commercial matters.

Finally, the debtor may obtain automatic mainlevée by providing an irrevocable bank guarantee equivalent to the secured amount. In such cases, the judge has no discretion: mainlevée must be ordered as a matter of law. This mechanism allows economically solvent debtors to neutralise attachment while preserving the creditor’s security.

XIII. Civil Liability of the Attaching Creditor

One of the most distinctive features of French conservatory attachment law is the creditor’s exposure to civil liability. Article L. 512-2 CPCE provides that a creditor may be ordered to compensate the debtor for harm caused by an unjustified conservatory measure.

Remarkably, liability is not contingent upon fault. The Cour de cassation has repeatedly held that even a creditor acting in good faith, and even one who obtained judicial authorisation, may be liable if the attachment is subsequently lifted or deemed unjustified. This strict liability regime reflects the exceptional nature of conservatory measures and their potential to inflict serious economic harm.

Damages may include loss of business opportunities, reputational harm, financial losses resulting from immobilised assets, or depreciation of securities that the debtor was unable to sell due to attachment. In cases involving financial instruments, courts have shown particular sensitivity to market volatility and have awarded substantial damages where attachment prevented the debtor from mitigating losses.

This risk has significant practical implications. Creditors must carefully assess not only the legal validity of attachment but also its economic proportionality. Where alternative security mechanisms are available, attachment should be used with caution.

XIV. Strategic Use of Attachment in Commercial Litigation

In modern commercial litigation, conservatory attachment functions as a strategic lever rather than a mere procedural tool. Its effectiveness lies not only in securing assets but also in altering the balance of negotiation between creditor and debtor.

The psychological impact of attachment is considerable. The sudden immobilisation of assets, often without prior notice, signals the creditor’s determination and legal preparedness. In many cases, attachment precipitates settlement discussions or voluntary payment without further litigation.

However, this strategic power must be exercised responsibly. Courts are increasingly attentive to abuses and are prepared to sanction disproportionate or opportunistic use of conservatory measures. Sophisticated creditors therefore integrate attachment into a broader litigation strategy that accounts for insolvency risks, asset structure, and potential liability.

In cross-border contexts, attachment also raises questions of coordination with foreign enforcement mechanisms and European regulations. While national attachment remains territorially limited, it may serve as a precursor to broader enforcement strategies within the European Union.

Ultimately, conservatory attachment under French law exemplifies the tension between efficiency and fairness in enforcement. When used appropriately, it is a formidable instrument for preserving creditors’ rights. When misused, it exposes the creditor to significant legal and financial consequences.