[Textes] Notification of the rights of appeal in the service of documents: comparative analysis Belgium/France

Keywords : service of documents • appeal • liability • comparative law

Whether we are considering a Belgium judicial officer or a French “commissaire de justice”, the enforcement professional can no longer exercise his official function in complete ignorance of foreign law.

Indeed, both parties are called upon to serve documents emanating from a foreign country, on a monthly basis. Europe has reacted to the problem of the European service of documents by creating generic forms, which are difficult to comprehend. 

These forms influence domestic law, as shown by the Belgian law of 26 December 2022, in respect of the means of appeal and various other provisions in judicial matters, which introduces a guidance note to be attached to the service of Belgian civil court decisions.

" Et alors, how will that impact me?", might think the French “commissaire de justice” ... "More paper?" might grumble the Belgian judicial officer...

It is as a result of these question, that this recent development has attempted to resolve

Legal background. The Belgian Constitutional Court, in a decision [1] of 10th February 2022, ruled that article 43 of the Judicial Code, insofar as it does not provide that when serving a judgment, any indication of the means of appeal, or the time limit for lodging the appeal or appeals, as well as the name and address of the competent court, violates articles 10 and 11 of the Constitution, read in conjunction with article 6 of the European Convention on Human Rights along with the general principles guaranteeing the right of access to the judge [2].

This ruling was ratified by a similar decision of the Belgian Constitutional Court on 30^th June 2022 [3].

The legislator, who had until the 31^st December 2022, to rectify this constitutional anomaly, adopted, on 26^th December 2022, a law requiring the notification of the means of appeal, including various provisions in judicial matters [4]

General principle. Quite logically, the legislator has opted for a sharing of responsibility between the judges, the court clerks, and the judicial officers as regards the obligation to inform the party served. It will thus be up to these professionals, each in their area of responsibility, to inform the party served, with the provision of a guidance note attached to the service of the court decision, including specific elements [5].

Scope. The scope of the new article 780/1 of the Judicial Code[6] is limited to decisions issued in civil matters, in all cases where service of a decision gives rise to an appeal. This guidance note must therefore not be issued in respect of a judgment rendered in criminal, with a civil component and where the service of a decision does not give rise to any appeal.

We can distinguish between two different circumstances in the application of this new law.

At the time of the decision. When the decision is issued, an information sheet [7], drawn up by the judge or the court clerk [8], containing relevant information, must include the following legal notices [9]:

• the method of appeal, opposition, or appeal in cassation that are applicable against the judgment or the absence of these means of appeal.
• the name and address of the court, with jurisdiction to hear the appeal.
• the manner in which such an appeal may be submitted.
• the time limit within which such an appeal must be submitted, with an indication of the legal grounds for extending the time limit.
• the legal act which authorizes the time limit to run.
• an explicit warning that the party who uses the procedure for manifestly dilatory or abusive reasons may be fined, without prejudice to any damages that may be claimed and to the payment of procedural costs.
• if necessary, the option for a third-party opposition with the same regulations.

At the time of service. At the time of service of a court decision, the judicial officer must intimate the following information within his document [10]:

• that this document initiates the time limit for an appeal as indicated within the information sheet.
• the first day from when this period will start to take effect, following the date of service.
• to reproduce article 47bis, paragraph 2 of the Judicial Code, which stipulates that "when the service of a decision is invalid, or when the guidance note referred to in article 780/1 is missing, the time limit for submitting an appeal does not start to run. The same shall apply if the information contained in the guidance note is incomplete or inaccurate, provided that the omission or inaccuracy could have misled the party acting in good faith”.

Entry into force. This obligation to attach the guidance note when serving court decisions applies not only to judgments rendered on or after 1^st January 2023, but also to judgments rendered before that date, but not yet served.

Advantages. By the adoption of this law, the citizen will undoubtedly be better informed of their options for an appeal and to dispute a decision which was taken against him. Naturally, it must be within the scope and responsibility of the judicial officer working in the field, to ensure that the citizen is properly informed of their rights. We must emphasize that the legislator tried to protect the life of the citizen, by adopting a single model of information sheet[11] to allow for crucial uniformity between the various jurisdictions of the country.

Disadvantages. We can nevertheless express some doubts about this law which not only arrives late, but also makes justice a little less understandable for the litigant. Not only has the implementation of this law caused various problems in the delivery of the information sheets by the courts' clerks, creating a delay to the prejudice of the creditors, in respect of a significant number of court decisions. Moreover, the complexity of the Belgian judicial system and the appeal procedures, makes it extremely difficult for the litigant to understand the document, so that when service cannot be made in person, the litigant will have no other option in most cases, than to contact a lawyer, to ensure that they are properly informed of the appeal procedures in respect of the decision which has been served upon them.

Practical issues caused by the timing of the enactment of this law. We notice that this obligation to notify the means of appeal in Belgian law is not simple, particularly with regard to the division of responsibility between the judge, the court clerk, and the judicial officer. This law gives rise to some questions for the practitioner, which we will briefly explain.  

If a court does not draft this information sheet, it is not the responsibility of the judicial officer to draft it, as according to the combined reading of articles 43 and 780/1 of the Judicial Code, this is the exclusive competence of the judge and the court clerk.

What should the judicial officer do when he finds himself without this information sheet? It is necessary to consider two possibilities here:

There is one or more means of appeal and the service of the document starts the time limits for appeal.

• In case of imminent prescription of the actio judicati, the judicial officer has no choice, he has to serve the decision even without an information sheet. The interests of the instructing party will thus be preserved even if the document will not validly start the time limits for appeal, against the party served in application of article 47bis, paragraph 2 of the Judicial Code.
• If in this case, there is still a need to start the time limits for appeal, then a second service will be necessary when the guidance note is issued by the competent court. The question of the procedural costs may arise, since this double service, increases the costs of the proceedings for the unsuccessful party [12].
• If we are not in the situation of an imminent prescription of the actio judicati. We can consider the following cases:
  • the judicial officer can decide to send back the copy judgment to his client, noting that the mandatory guidance note to be attached to the judgment by the court clerk's office is missing, which would properly start the time limits for appeal following the service of the title. It will then be up to the client to contact the court clerk.
  • the judicial officer can decide himself to make contact with the court clerk's office in order to obtain the guidance note and inform the principal.
  • At the express request of the client, the judicial officer can serve the judgment WITHOUT the guidance note at the risk of the claimant. The claimant will then have to bear the costs of a possible second service.

There are one or more means of appeal and the service of the document does NOT start the time limit for appeal or there are no means of appeal.

In this case, the service of the writ logically does not set any time limit and the guidance note should therefore not be attached. The instructions given to the court clerks in this respect are quite clear and are expressly mentioned in the model form [13].

Specifically, where an appeal is not possible, it’s required that the judicial officer must expressly explain this in the document to be served.

Impact for the French professional. The butterfly effect exists not only in meteorology but also in the legal field. The Belgian law of 26^th December 2022, concerning the notification of the means of appeal and various provisions in judicial matters, is a proof of this.

For the French “commissaire de justice”, being aware of this rule of Belgian civil procedure may seem unnecessary. This would be a mistake, especially because there is a rare but real procedure surrounding the service of a foreign judgment in French law.

In this type of procedure, the question which constantly arises is to know if the service in France, of a foreign court decision must respect the provisions of article 680 of the French Code of civil procedure (and thus inform the relevant means of appeal), or only respect the prescriptions of the internal law of the country of origin of the decision to be served. In this later situation, in order to support the nullification of the document served, the party who contests the validity of the document, regularly argues that there is no presumption of knowledge of a foreign law, so that the fact of not pointing out the ways of appeal available, for opposing a foreign decision, is by nature, prejudicial to that person…

Curiously, the Court of Appeal of Nîmes judged on 20^th January 2021 [14], as did the Court of Appeal of Douai on 20^th January 2011 [15], that article 680 of the Code of Civil Procedure N° Lexbase : L1240IZX is only applicable to judgments rendered by French courts. The service of judicial documents from abroad is governed by the rules set out in section V entitled "Special rules for international service". The judges concluded that the French judicial officer in charge of the service in France, of the judgment rendered by the Belgian Court, had to proceed in accordance with French law, and thus in accordance with the provisions of article 683 of the Code of Civil Procedure N° Lexbase : L6759LE3, which he did.

If the solution adopted is satisfactory for the “commissaire de justice”, whose professional indemnity insurance is not effected, it leaves open the question: how to be informed of the existence of remedies in such a case? On this point, the Court of Appeal of Nîmes indicated that the debtor had to contact the court which had delivered the judgment, which was identified in the document of service.

These two decisions, are equally considerate of the civil procedures of national and foreign law, however, leaves a strange feeling similar to that of embarrassment, to note that the French party condemned by a Belgian jurisdiction, had to inquire about the methods and deadlines of recourse with the competent Belgian judicial authorities, which it could identify thanks to the information delivered by way of the document of service. But how to obtain this information when the Belgian judicial authority does not speak French? as it would leave the French citizen in an intolerable legal insecurity in domestic law.

The Belgian law of 26^th December 2022 impacts French law, in that the “commissaire de justice” cannot ignore the fact, that the above-mentioned judgments have become obsolete. When required to serve in France, a judgment rendered by a Belgian judicial authority, the French “commissaire de justice” will have to be careful in respect of the service of the notice of appeal, in particular, if a forced execution is envisaged thereafter, which will take place according to the French civil procedure and under their personal responsibility...

From a strictly comparative point of view, it can appear shocking to the French “commissaire de justice”, that his Belgian counterpart is not the author of the notice, but only in charge of delivering it to its addressee. The division of responsibility in Belgian law on the question between the judges, the clerks of the court and the judicial officers, certainly explains the recourse to a pre-written notice, whose multitude of envisaged circumstances, makes it unintelligible for the average citizen. It is possible to regard it as a failure of the law of 26^th December 2022, where the citizen must contact a lawyer to understand the means of recourse that they will be able to exercise, against the decision which was served upon them. In order to avoid this obstacle and because to serve, is not to simply deliver a document, but to inform the parties, then the Belgian judicial officer who will meet the addressee, to explain their rights so that the service is effective. This practical obligation will perhaps be codified in law, with the opportunity for the Belgian judicial officer, by his own pen and initiative, by notifying the addressee of the document, of the options available, in the same manner as the French “commissaire de justice” as if he is serving the Belgian notice in France.

It is true that no text obliges the Belgian judicial officer to proceed by offering additional information to the addressee of the document, other than by the handing-over of the notice which he may not have necessarily written. But, in the absence of such text, it is the practical reality which obliges him. Indeed, as in French matters (Art. 503 CPC N° Lexbase : L6620H7C), article 1495 of the Belgian Judicial Code, requires that the writ of execution be served before it is enforced. In the event of a dispute, the judge of seizures is competent... There is no doubt that in respect of disputes relating to seizures, the question of the regularity of the service of the legal decision and its notice will be considered. In such a case, it is likely that only the authority of the Belgian judicial officer will be considered, which is why it is necessary for the judicial officer to facilitate the drafting of the remedies and this notice.

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[1] Cour Cons., 10 february 2022, n° 23/2022, R.G. 7469 [on line].

[2] See R. De Rubeis, L’effectivité des significations en sursis : arrêt de la Cour constitutionnelle du 10 février 2022, Bull. proc., n° 18, march 2022, p. 3.

[3] Cour Cons., 30 june 2022, n° 92/2022, R.G. 7772 [on line].

[4] MB 30 décember 2022 [on line].

[5] See also R. De Rubeis, « La loi du 26 décember 2022 : une réponse encourageante à l’inconstitutionnalité de l’article 43 du Code judiciaire », Bull. proc., n° 23, january 2023, p. 1.

[6] Article 780/1 of the Judicial Code: "In the cases expressly provided for by law, a guidance note shall be attached to the judgment in civil matters, in which the following data shall be mentioned for each party.

a) the remedies of appeal, opposition or cassation that are applicable against the judgment or the absence of such remedies; b) the name and address of the court competent to hear such remedies; c) the manner in which such remedies are to be lodged; d) the time limit within which such remedies are to be lodged, with an indication of the legal grounds for extension of the time limit; f) an explicit warning that the party who uses the procedure for manifestly dilatory or abusive purposes may be fined, without prejudice to any damages that may be claimed and to the payment of the procedural indemnity. If necessary, the guidance note also mentions the possibility of third-party opposition with the same data. The data in the guidance note may be rectified or completed ex officio or at the request of one of the parties or the judicial officer mandated by him, by simple letter or declaration to the clerk's office, within eight days of the request. The guidance note is not part of the judgment. It shall be attached to the copy referred to in Article 790. The King may determine the model of the information sheet".

[7] The model of which has been fixed by the King and whose use is compulsory. The law also specifies that if the form is incomplete or contains an error, a simplified procedure is provided.

[8] At the choice of the court seized.

[9] Article 780/1 of the Belgian Judicial Code [on line].

[10] Article 43 of the Belgian Judicial Code [on line]. 

[11] See AR of December 26, 2022, establishing the model guidance note (MB December 30, 2022).

[12] These costs cannot be charged to the party against whom the judicial officer enforces.

[13] However, we see that this uniformity is only relative, since shortly after the entry into force of this law, the French-speaking Business Court of Brussels did not adopt the same interpretation of the law as the Dutch-speaking Business Court of Brussels in bankruptcy matters. Indeed, under Belgian law, the service of a notice of default only gives rise to a right of appeal in bankruptcy matters, if the bankruptcy is declared by default. Within the framework of the information for the litigant, the Dutch-speaking Business Court of Brussels delivers the guidance note noting three options (the opposition, the appeal, and a third-party appeal), thus where the time limit does not begin with the service. Whereas the French-speaking Business Court of Brussels, delivers an guidance note only for bankruptcies pronounced by default. In our opinion, it is the reasoning of the French-speaking Business Court that should be followed, since in other cases it is not the service of the judgment that starts the time limit for appeal and this law is therefore not applicable. We see therefore that even within the courts, which are located in the same region, the application of the law is different, which undoubtedly widens the gap between justice and the litigant.

[14] CA Nîmes, 20 januari 2021, n° 19/01480 N° Lexbase : A13344DR.

[15] CA Douai, 20 januari. 2011, n° 09/06572 {"IOhtml_internalLink": {"_href": {"nodeid": 3582396, "corpus": "sources"}, "_target": "_blank", "_class": "color-sources", "_title": "CA Douai, 20-01-2011, n\u00b0 09/06572", "_name": null, "_innerText": "N\u00b0\u00a0Lexbase\u00a0: A1181GR8"}}.

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