Order for payment: no prior attempt at an out-of-court settlement (opinion of 25 September 2025)

The prior attempt at amicable settlement provided for in Article 750-1 of the Code of Civil Procedure – particularly where the claim is for 5,000 euros or less – is not mandatory for a creditor who brings a claim before the court by way of an application for a payment order. This is the rule established by the Second Civil Chamber of the Court of Cassation in its opinion of 25 September 2025 (No. 25-70.013), published in the Bulletin. This opinion puts an end to a persistent divergence between the courts of first instance, even though the issue affects a significant proportion of debt recovery litigation: payment orders give rise to several hundred thousand applications each year, the majority of which relate to claims of €5,000 or less. The practical implications for businesses are therefore considerable.

Key points

1. Article 750-1 of the Code of Civil Procedure requires, on pain of inadmissibility which may be raised ex officio, a prior attempt at amicable resolution for any legal claim seeking payment of a sum not exceeding €5,000.
2. Until the opinion of 25 September 2025, the courts were divided on the applicability of this requirement to applications for a payment order.
3. Referred for an opinion by the Vannes Court of First Instance, the Second Civil Chamber ruled unequivocally: Article 750-1 is inapplicable in both phases of the procedure (initial application and proceedings on opposition).
4. The Court’s reasoning is based on the exceptional nature of the order for payment and on the objectives of speed and the proper administration of justice that govern it.

The framework of Article 750-1 of the Code of Civil Procedure: a prior attempt at amicable resolution, failing which the claim is inadmissible

Article 750-1 of the Code of Civil Procedure, as amended by Decree No. 2023-357 of 11 May 2023 applicable to proceedings brought on or after 1 October 2023, makes the admissibility of certain claims conditional upon proof of a prior attempt at amicable settlement. The litigant has a choice of three options: conciliation conducted by a court-appointed conciliator, mediation or a participatory procedure. Three areas are covered: claims for payment of a sum not exceeding €5,000, proceedings relating to neighbourhood disputes referred to in Articles R. 211-3-4 and R. 211-3-8 of the Code of Judicial Organisation, and abnormal neighbourhood disturbances.

Five exhaustively listed cases of exemption coexist with this principle: applications for the approval of an agreement, the obligation to seek prior redress from the author of a decision, legitimate grounds (manifest urgency, circumstances rendering an attempt impossible or requiring a decision without a hearing, unavailability of conciliator for more than three months), prior mediation required by a specific provision, or failure of a simplified small claims recovery procedure within the meaning of Article L. 125-1 of the Code of Civil Enforcement Procedures.

The order for payment procedure is not expressly covered by these exemptions — which explains, precisely, why the question of its relationship with the prior amicable settlement has remained unresolved.

A matter giving rise to divergent case law

Prior to the opinion of 25 September 2025, practice had been hampered by a worrying lack of consistency in first-instance decisions. Several courts had required a prior attempt at amicable settlement on pain of inadmissibility; others, in greater numbers, had disregarded this requirement.

This disparity created genuine legal uncertainty: the same creditor could have their application declared inadmissible in one jurisdiction and upheld in another, without the difference being attributable to the facts of the case. Faced with this situation, the Vannes Court of First Instance referred the matter to the Court of Cassation for an advisory opinion, pursuant to Articles L. 441-1 et seq. of the Code of Judicial Organisation and 1031-1 et seq. of the Code of Civil Procedure.

The question raised was twofold: must an application for a payment order relating to a sum of less than €5,000 be preceded by an attempt at amicable settlement, failing which it will be inadmissible? And, if so, must this attempt take place before the application is filed or before the order is served?

The opinion’s contribution: total inapplicability in both phases of the procedure

The Court of Cassation answered this with a clear statement: “the order for payment procedure is not, in either of its two stages, subject to the obligation, provided for in Article 750-1 of the Code of Civil Procedure, of a prior attempt at amicable resolution of the dispute”.

The initial phase: speed and non-adversarial nature

The first phase of the order for payment procedure, governed by Articles 1407 and 1409 of the Code of Civil Procedure, is based on a mechanism of reversal of the adversarial process: the judge rules on a unilateral application, without debate or the debtor’s appearance. In the Court’s view, the objectives of speed and the proper administration of justice assigned to this procedure, combined with its non-adversarial nature until opposition is lodged, are incompatible with the requirement of prior amicable settlement.

The Court acknowledges, however, in all honesty, that the order for payment procedure does not formally fall within the cases of exemption listed in Article 750-1. The creditor who resorts to it is in fact exercising a procedural option: the ordinary law route remains open to them. It is therefore not necessity that dictates the non-adversarial nature of the initial phase. It is following a teleological balancing of interests — and not by mere literal application of the exemptions — that the Court sets aside Article 750-1.

The opposition phase: absence of a mechanism for coordination

Upon the debtor’s opposition, the proceedings once again become adversarial. The Court could therefore have applied the requirement for prior amicable settlement at this stage. It refrains from doing so, noting that neither Article 750-1 nor the specific provisions governing the order for payment procedure provide for the implementation of such a prerequisite at this stage. The penalty of inadmissibility provided for in Article 750-1 would require a precise procedural framework — at what stage? at whose expense? under what conditions? — the contours of which are not defined by any text. In the absence of such a mechanism, the Court logically concludes that the obligation cannot apply at this stage.

The reasoning is therefore as follows: the first phase essentially excludes the prerequisite, and the second cannot accommodate it due to the lack of an appropriate procedural framework.

The practical implications for creditors

For businesses, three operational lessons emerge.

Firstly, the order for payment procedure remains intact for claims of a modest amount, including where they fall below the €5,000 threshold. No prior amicable attempt, nor any mention in the application of an attempt at conciliation or mediation, is legally required. The risk of inadmissibility based on Article 750-1 is ruled out.

Secondly, the choice of procedural route remains decisive. Proceedings on the merits and interim relief proceedings remain subject to prior amicable settlement where the claim does not exceed €5,000 — the Court having already ruled that the subject matter of interim relief proceedings does not, in principle, preclude the application of Article 750-1 (Civ. 2nd, 14 Apr. 2022, No. 20-22.886). An ill-judged choice between these procedures may still expose the creditor to a dismissal on procedural grounds. The choice between a payment order, interim relief and an action on the merits therefore gains strategic importance.

Thirdly, the effectiveness of the procedure is thereby enhanced without affecting the debtor’s security. The rate of opposition remains traditionally low, and a debtor wishing to contest retains the option to lodge an opposition under the terms of Articles 1412 et seq. of the Code of Civil Procedure, thereby initiating a full adversarial proceeding.

Ongoing debates and prospects

The opinion is widely endorsed in legal scholarship for its practical effectiveness, but it is not without provoking well-reasoned reservations. Some commentators have pointed out that the teleological argument adopted by the Court could be turned against it: if speed were sufficient to override Article 750-1, the same logic should exempt interim relief, which remains in principle subject to prior amicable settlement (Civ. 2nd, 14 Apr. 2022, No. 20-22.886). Others have observed that the opinion draws more on a judicial neutralisation than on a literal reading of the texts, which leaves open the possibility of subsequent regulatory intervention.

Several avenues for development are also being considered. Some legal scholars suggest introducing, as in other systems, an attempt at judicial conciliation at the opposition stage, entrusted to the judge themselves. Such a reform, if implemented, would have the advantage of combining flexibility with amicable resolution without compromising the speed of the initial phase. To date, the latest reform of civil conciliation (Decree No. 2025-660 of 18 July 2025) has not altered the scope of Article 750-1, and no legislative changes have been announced in this regard.

In the meantime, creditors and their legal advisers have a firm point of reference: the prior attempt at amicable settlement under Article 750-1 of the Code of Civil Procedure is not a condition for the admissibility of the application for a payment order, nor of the opposition proceedings that may follow.

Conclusion

The opinion of 25 September 2025 clarifies the order for payment procedure in both its stages. The creditor may therefore initiate enforced recovery of a debt of less than €5,000 without any prior conciliation, mediation or participatory procedure. Two points require attention: firstly, the choice of procedural route (the opinion does not extend to interim relief proceedings or to proceedings on the merits); secondly, the care required in drafting the application and serving the order, upon which the enforceability of the order and the interruption of the limitation period depend.

The firm assists creditors, company directors and legal departments in defining and implementing judicial debt recovery strategies, from choosing between a payment order, interim relief proceedings and proceedings on the merits, right through to the enforcement phase. To ensure the admissibility of a claim and anticipate the consequences of any opposition, a preliminary consultation with a lawyer remains the surest way to preserve the speed and effectiveness of the proceedings.

For further information, see our other articles on debt recovery:

• Commercial debt recovery
• Order for payment: a practical guide to commercial debt recovery
• Commercial debt recovery: procedures, timeframes and strategy