Information Note on the Court’s case-law 263
June 2022
Novoparc Healthcare International Limited v. France (communicated case) - 33015/18
Article 6
Enforcement proceedings
Article 6-1
Access to court
Fair hearing
Equality of arms
Immunity of a foreign central bank from post-judgment restraining measures: communicated
In 2003 a Dutch court found against the Central Bank of Iraq, ordering it to pay the applicant company various sums amounting to the equivalent of several million euros. In 2007 the judgment was upheld on appeal. The applicant subsequently sought, in France, a court order provisionally restraining the disposal of certain assets of the Central Bank of Iraq which were in the hands of a third party. After obtaining authority to have the Dutch judgment enforced abroad, the preventive attachment order (saisie conservatoire) was converted into a final measure of seizure and allocation (saisie-attribution).
The Central Bank of Iraq brought proceedings to have the enforcement measures declared null and void, relying on Article L.153-1 of the Monetary and Finance Code, which provides that: (i) assets “held or handled” by foreign central banks “on their own account or on behalf of the foreign State” on which they depend “cannot be seized”; and that (ii) by way of exception, the creditor may ask the court for “authorisation to pursue enforcement” if the creditor can show that the assets in question “are part of the assets that the foreign central bank allocates to a principal private-law activity”.
Before the executions judge the applicant company raised a priority question of constitutionality (QPC) on the subject of those provisions. However, the Court of Cassation considered that it did not need to refer the question to the Constitutional Council (ECLI:FR:CCASS:2013:C201450). In 2014 the executions judge declared null and void the original preventive measure and its conversion into a final seizure. The Court of Appeal upheld the finding of nullity. In 2018 the Court of Cassation dismissed the company’s appeal on points of law (ECLI:FR:CCASS:2018:C200021).
The applicant company complains of an interference with its right to the enforcement of court decisions, criticising the applicable French law for requiring the creditor to bring a claim before the executions judge prior to any measures of enforcement, and to adduce evidence of the allocation of the assets, whereas only the foreign central bank is in a position to clarify the actual use of the assets in question. In its view, those restrictions go beyond the requirements of international law, as contained in particular in the United Nations Convention on the Jurisdictional Immunities of States and Their Property (adopted in 2004).
The applicant company also complains of the refusal by the Court of Cassation to refer its QPC to the Constitutional Council on the ground that it had already ruled on the constitutionality of the provisions in question. In the applicant’s view, the Constitutional Council had previously only ruled on the legitimacy of the aim pursued, while its own question went to the issue of proportionality.
Communicated under Articles 6 § 1 and 13 of the Convention.
© Council of Europe/European Court of Human Rights
This summary by the Registry does not bind the Court.
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