The dismissal of an application for a stay of provisional enforcement never requires the judge to order the removal of the appeal from the court list (radiation) for failure to enforce. The second civil chamber holds that the two decisions do not pursue the same purpose and do not rest on the same criteria. A judge hearing an application for removal from the list based on Article 524 of the French Code of Civil Procedure must therefore examine the merits of that application.
Key points
- A decision removing an appeal from the list for failure to enforce remains open to challenge before the Cour de cassation (France's highest civil court) where it stems from an excess of powers (excès de pouvoir), since it affects the exercise of the right to appeal.
- The dismissal or the inadmissibility of an application for a stay of provisional enforcement does not relieve the judge of the duty to examine separately the application to remove the case from the list for failure to enforce.
- An appellant who has not enforced the judgment retains two escape routes under Article 524 of the French Code of Civil Procedure: manifestly excessive consequences of enforcement, or the impossibility of enforcing.
- A decision given in summary proceedings (référé) on the stay of provisional enforcement has no res judicata effect on the merits in respect of the application for removal from the list.
What the court held on removal of an appeal for failure to enforce
The court of appeal cannot order the removal of the appeal from the list on the sole ground that the application for a stay of provisional enforcement has failed (Civ. 2e, 11 June 2026, No. 24-11.444). A unit owner (copropriétaire) had been ordered by a tribunal judiciaire (first-instance civil court) to pay various sums to the commonhold association (syndicat des copropriétaires), the judgment carrying provisional enforcement as of right. They appealed, then applied to the first president for a stay of provisional enforcement, which was declared inadmissible by an order in summary proceedings. The commonhold association then applied to the conseiller de la mise en état (pre-trial judge of the court of appeal), primarily for a declaration that the appeal was inadmissible and, in the alternative, for the case to be removed from the list.
The conseiller de la mise en état declared the appeal inadmissible. On déféré (referral to the full bench of the court of appeal), the decision under appeal (CA Montpellier, 11 April 2023, No. 23/00241) overturned that order, then ordered the case to be removed from the list for failure to enforce, holding that the first president's order in summary proceedings was final.
The second civil chamber partially quashes that decision: by declaring itself bound by the order in summary proceedings, the court of appeal misconstrued the extent of its own power to adjudicate. The Cour de cassation first rejects the objection that the appeal to it was inadmissible, raised by the defence (free translation).
Since that case management measure affects the exercise of the right to appeal, it follows that it is open to challenge in the event of an excess of powers, which falls to be examined.
On the substance, the decision states that the inadmissibility of the application for a stay of provisional enforcement, ordered in summary proceedings and having no res judicata effect on the merits, did not relieve the court of appeal of the duty to examine, under Article 524 of the French Code of Civil Procedure, the merits of the application for removal from the list, which does not pursue the same purpose and does not rest on the same criteria.
Two separate applications: stay of provisional enforcement and removal from the list
Failure before the first president does not settle the fate of the removal from the list: these are two independent applications. An application for a stay of provisional enforcement requires, under Article 514-3, paragraph 1, of the French Code of Civil Procedure, a serious ground for setting aside or varying the judgment and a risk of manifestly excessive consequences. These two conditions are cumulative. The first president then rules in summary proceedings.
Removal from the list follows a different logic. Under Article 524, paragraph 1, of the French Code of Civil Procedure, the judge may remove the case from the list where the appellant does not show that they have enforced the decision appealed against or lodged a deposit under the conditions laid down in Article 521. Two reservations preclude removal: it appears to the judge that enforcement would be liable to entail manifestly excessive consequences, or the appellant is unable to enforce. These reservations are alternative.
For an appellant ordered to pay, the consequence is direct. A dismissal before the first president does not prevent them from mounting an effective defence against an application for removal from the list. Before the judge hearing that application, they must produce the material specific to the criteria of Article 524: proof of enforcement or of a deposit, evidence establishing manifestly excessive consequences, or proof that they are unable to enforce.
What scope for review of case management measures?
The decision confirms that a case management measure (mesure d'administration judiciaire) is in principle immune from challenge, save for an excess of powers where it affects the exercise of the right to appeal. Article 524, paragraph 3, of the French Code of Civil Procedure expressly characterises the removal decision as a case management measure. The commonhold association inferred from this that no remedy at all was available. The second civil chamber holds, on the contrary, that removal from the list for failure to enforce affects the right to appeal, which opens the way to a challenge for excess of powers.
The second contribution lies in the definition of excess of powers adopted in this case: a judge who considers themselves bound by an earlier decision that has no res judicata effect misconstrues the extent of their power to adjudicate. The quashing is partial: it concerns only the removal from the list and the court costs of the déféré. The case is remitted to a different court of appeal, which will have to examine the application for removal in the light of the criteria of Article 524.
The fact remains that the solution does not say what will become of the removal before the court to which the case is remitted. It requires an examination, not an outcome. As the case law stands at 11 June 2026, an appellant in default of enforcement remains exposed to removal from the list where the judge, after examination, rejects the two reservations of Article 524.
What steps for an appellant ordered to pay?
An appellant ordered to pay must treat the application for removal from the list as a dispute in its own right, distinct from the application for a stay of provisional enforcement. Arguing solely by reference to the first president's decision leaves the debate without substance. The appellant has every interest in documenting their situation precisely against the criteria of Article 524 of the French Code of Civil Procedure.
For the respondent creditor, the lesson is symmetrical. Relying on the final character of the order in summary proceedings is not enough to secure removal from the list. The judge must assess for themselves the failure to enforce and the reservations raised by the appellant. A well-constructed application for removal therefore rests on demonstrating the absence of enforcement and of any deposit, and on discussing the material put forward by the appellant.
A procedural point must be added: Article 524 makes removal subject to first obtaining the parties' observations. That adversarial debate is the moment when the assessment of the criteria is played out.
Checks to carry out when faced with an application for removal from the list
- Check whether the judgment appealed against carries provisional enforcement, whether as of right or ordered: that is the precondition for removal from the list.
- Gather the evidence of enforcement or of the deposit provided for in Article 521 of the French Code of Civil Procedure before the interlocutory hearing.
- Build separately the argument drawn from the manifestly excessive consequences of enforcement and the argument drawn from the impossibility of enforcing.
- Do not treat the dismissal of an application for a stay of provisional enforcement as a point already lost: the criteria differ.
- Present observations in the adversarial debate organised by Article 524, the only moment when this material will be assessed.
Frequently Asked Questions
Can the removal of my appeal from the court list for failure to enforce be challenged?
Yes, but within narrow limits. A decision removing an appeal from the court list for failure to enforce is a case management measure and is in principle not open to any remedy. On 11 June 2026 the second civil chamber held that, because it affects the exercise of the right to appeal, the measure may be challenged where it involves an excess of powers. Mere disagreement with the assessment of the facts is not an excess of powers.
Can a judge remove my appeal from the list simply because the first president refused to stay provisional enforcement?
No. The Cour de cassation held that a judge hearing an application for removal from the list cannot treat themselves as bound by the decision given on the stay of provisional enforcement. The two applications do not pursue the same purpose and do not rest on the same criteria. The judge must examine for themselves the merits of the removal application under Article 524 of the French Code of Civil Procedure.
What arguments can prevent removal from the list when I have not paid?
Article 524, paragraph 1, of the French Code of Civil Procedure lays down two alternative reservations. The judge will refuse removal if it appears that enforcement would be liable to entail manifestly excessive consequences, or that the appellant is unable to enforce the decision. The appellant may also show that the judgment has been enforced, or that a deposit has been lodged under the conditions laid down in Article 521 of the same code.
Does a decision given in summary proceedings have res judicata effect on the merits of the dispute?
No. A decision given in summary proceedings is in principle provisional and has no res judicata effect on the merits. It resolves a question urgently or on a protective basis, without binding a judge later called upon to rule on a different subject matter. A judge hearing a separate application must therefore conduct their own examination. Treating oneself as bound by such a decision misconstrues the extent of one's power to adjudicate.
Must a first-instance judgment be enforced even when an appeal has been lodged?
Where provisional enforcement applies, an appeal does not suspend the obligation to enforce. A party ordered to pay who fails to do so is exposed to enforcement measures and, on appeal, to an application to remove the case from the court list. Two routes exist to guard against this: applying for a stay of provisional enforcement, or lodging a deposit where that option is available. Each has its own conditions.