Protective attachment and specialised court

Note on Cass. civ. 2e, 22 October 2026, no. 23-21.018, F-B

Can a creditor seeking a protective attachment on the basis of the abrupt termination of an established commercial relationship apply to a judge who does not belong to the small circle of specialised courts?

Yes, holds the Second Civil Chamber of the Cour de cassation, in a decision published in the Bulletin: the specialisation rules of the French Commercial Code do not govern protective measures, which remain subject to the Code of Civil Enforcement Procedures.

The facts

An IT service provider, bound to its client by a services agreement entered into in 2019, alleged that the client had abruptly cut off its access and suspended its payments in spring 2022.

It obtained from the President of the Niort Commercial Court leave to attach the client’s bank accounts on a protective basis for slightly over EUR 2.3 million.

That sum covered unpaid invoices, but also two alleged heads of damage: EUR 363,714 for financial loss arising from the abrupt termination of the established commercial relationship, and EUR 100,000 for non-pecuniary loss.

Seised by the client of an application to lift the attachment, the President of the Commercial Court dismissed it.

On appeal, the Poitiers Court of Appeal reversed and ordered the attachment lifted in full1.

As regards the invoices, it upheld the debtor’s defence of non-performance (exception d’inexécution). That point need not detain us.

By contrast, as regards the heads of damage, the court raised of its own motion a ground based on specialisation. In its view, since the courts within its territorial jurisdiction lack the power to hear abrupt-termination disputes, reliance on such a termination could not establish the apparent existence of a claim warranting a protective attachment.

Thus, for the lower court, the exclusive jurisdiction of the specialised courts over restrictive commercial practices would prevent any other judge from taking into account a claim arising from the abrupt termination of an established commercial relationship in order to authorise or maintain a protective measure.

The Cour de cassation’s solution

This maximalist conception of the specialised courts’ exclusive jurisdiction was far from self-evident.

It did not find favour with the Cour de cassation.

On the basis of Article L. 213-6 of the Code of Judicial Organisation, Articles L. 511-3 and R. 511-2 of the Code of Civil Enforcement Procedures, and Articles L. 442-4, III, and D. 442-2 of the Commercial Code, the Second Civil Chamber quashed the decision.

It held that the jurisdictional rules of the Commercial Code « do not concern applications for protective measures » governed by Book V of the Code of Civil Enforcement Procedures, which « remain subject to the jurisdiction of the enforcement judge or of the President of the Commercial Court of the place where the debtor resides ».

Specialisation has its limits

The strictness of the case law on the specialisation of restrictive-practices litigation, provided for by Article L. 442-4, III, of the Commercial Code, is well known2.

A claim brought before a non-specialised court comes up against a plea of inadmissibility (fin de non-recevoir), which the court must raise of its own motion.

Since the 2017 reversal of precedent, an appeal against a decision of a non-specialised court lies to the territorially competent Court of Appeal, which must raise of its own motion the excess of power committed by the first-instance judge and declare inadmissible the claims based on abrupt termination3.

The Commercial Chamber applies this rule consistently, going as far as quashing without remand in order to declare such claims inadmissible4.

The Poitiers Court of Appeal saw fit to transpose this reasoning to the stage of protective attachment, expressly citing one of those decisions5.

This transposition appears to stem from a certain confusion. The judge seised of an application for protective attachment does not decide any « dispute relating to the application » of Article L. 442-1: it merely verifies that the claim « appears well-founded in principle » and that its recovery is under threat6.

It does not encroach upon the province of the specialised court, any more than it jeopardises the consistency of the case law: its assessment, being provisional, does not bind the court ruling on the merits.

Protective attachment is a matter of proximity and speed; sending the creditor to one of the specialised courts, often far removed from the debtor and its assets, would have compromised its effectiveness.

The division of roles is thus as follows: appearances belong to the judge of provisional measures, close to the debtor7; the merits of the abrupt termination remain reserved to the specialised court.

The amendment of Article L. 213-6 of the Code of Judicial Organisation by the Act of 26 May 2026, which now expressly provides that the enforcement judge authorises protective measures, reinforces this reading8. The Commercial Code itself, moreover, grants the summary-proceedings judge (juge des référés) the power to order any provisional measure in matters of restrictive practices; overall coherence is the better for it9.

One caveat should be stressed: the decision addresses only the protective measures of Book V of the Code of Civil Enforcement Procedures; it does not resolve the separate question of whether a non-specialised summary-proceedings judge may award an interim payment (provision) on the basis of an abrupt termination.

Takeaways

  • Article L. 442-4, III, of the Commercial Code, which allocates abrupt-termination disputes to specialised courts, does not govern applications for protective measures.
  • Authorisation remains a matter for the enforcement judge (juge de l’exĂ©cution) or the President of the Commercial Court of the place where the debtor resides.
  • That judge may therefore take into account compensation for abrupt termination when assessing whether the claim appears well-founded in principle.

Notes

  1. CA Poitiers, 2e ch. civ., 27 June 2023, no. RG 22/02860, courdecassation.fr. ↩
  2. French Commercial Code, Art. L. 442-4, III, as amended by Ordinance no. 2019-359 of 24 April 2019, Légifrance; formerly Art. L. 442-6, III. ↩
  3. Cass. com., 29 March 2017, no. 15-17.659, Légifrance, and no. 15-24.241, Légifrance. ↩
  4. See, e.g., Cass. com., 11 January 2023, no. 21-21.762, Légifrance. ↩
  5. See, in particular, R. Loir, « Les cours d’appel et l’article L. 442-6 du Code de commerce », JCP E 2017, 1238; A. Lacresse and Ph. Vanni, « L’amendement par la Cour de cassation de sa jurisprudence met-il fin aux difficultés liées au contentieux de spécialisation de l’article L. 442-6 du Code de commerce ? », RLC 2017, no. 64, p. 36. ↩
  6. Code of Civil Enforcement Procedures (CPCE), Art. L. 511-1, Légifrance. ↩
  7. CPCE, Art. L. 511-3, Légifrance, and Art. R. 511-2, Légifrance. ↩
  8. Code of Judicial Organisation (COJ), Art. L. 213-6, as amended by Act no. 2026-403 of 26 May 2026, Légifrance; Act, Légifrance. The decision concerns facts predating this reform. ↩
  9. French Commercial Code, Art. L. 442-4, II, para. 3, Légifrance. ↩