Removal from the List for Failure to Comply: Your Appeal Remains Protected (Cass. 2e civ., 11 June 2026, No. 24-11.444)

Cass. 2e civ., 11 June 2026, No. 24-11.444, published in the Bulletin (judgment No. 633 F-B), partial quashing

Why This Judgment Concerns Everyone Appealing an Order to Pay

A borrower ordered to repay a loan, a guarantor called upon to pay, a customer whose account is overdrawn, a co-owner ordered to pay service charges: all have one thing in common when they decide to appeal. Since the civil procedure reform that came into force on 1 January 2020, their appeal no longer suspends enforcement of the judgment. In practical terms, the creditor, often a bank, can immediately have seizures carried out, even though the dispute has not been finally decided.

To rebalance this system, the legislature provided a safety valve: the possibility of asking the First President of the court of appeal to stop provisional enforcement. But it also armed the creditor with a formidable countermeasure: removal of the case from the list for failure to comply. In plain terms, if the appellant has not paid, their appeal is frozen until they comply. The judgment of 11 June 2026 clarifies how these two mechanisms fit together and, above all, recalls that the judge cannot dispose of the question of removal from the list merely because an earlier application by the appellant has failed. It is a procedural decision, but its effects are very concrete for anyone challenging an order to pay.

What Is Provisional Enforcement and Why Does It Frighten the Appellant?

Before the 2019 reform, an appeal in principle had suspensive effect: while the court of appeal was ruling, the losing party was not compelled to pay. The decree of 11 December 2019 reversed this logic. Provisional enforcement is now automatic for almost all first-instance judgments. A creditor holding a judgment ordering payment can therefore commence enforcement measures, such as a bank account seizure, an attachment of earnings or a seizure and sale of goods, even though the case is pending before the court of appeal.

For the borrower, guarantor or bank customer ordered to pay, the stakes are immediate and material: they risk having to pay a sometimes considerable sum before they have even been able to put their case before the judges at second instance. If the appeal then results in the judgment being overturned, recovering the sums paid is not always straightforward, especially if the creditor has become insolvent in the meantime. Hence the importance of the corrective mechanisms provided for by the Code of Civil Procedure.

How Do You Apply to Stop Provisional Enforcement (Article 514-3)?

Under Article 514-3, paragraph 1, of the Code of Civil Procedure, in the wording resulting from Decree No. 2019-1333 of 11 December 2019, where an appeal is brought, the First President may be asked to stop provisional enforcement of the decision “where there is a serious ground for annulment or reversal and where enforcement risks having manifestly excessive consequences”. Two conditions, therefore, which must be met cumulatively:

An essential point clarified by Article 514-6 of the same Code: when seised on the basis of Article 514-3, the First President rules in summary proceedings, by a decision that is not open to an appeal on points of law. This decision settles a specific question (should enforcement be suspended?) and nothing else. It is this limited nature, as we shall see, that justifies the fact that it does not bind the judge later called upon to rule on removal from the list.

What Is Removal from the List for Failure to Comply (Article 524)?

Article 524, paragraph 1, of the Code of Civil Procedure, in the wording resulting from the decree of 11 December 2019, provides that, where provisional enforcement is automatic or has been ordered, the First President or, once seised, the pre-trial judge (conseiller de la mise en état), may, in the event of an appeal, at the request of the respondent and after hearing the parties’ observations, order the case to be removed from the list where the appellant does not show that they have complied with the decision under appeal or have made the authorised deposit. The text, however, attaches to this sanction two exceptions that are crucial for the appellant:

This second exception, the impossibility of complying, is decisive. An appellant of modest means, who simply cannot afford to pay the sum awarded, can rely on this impossibility to prevent their appeal from being frozen. It is a safeguard intended to prevent removal from the list from closing access to the appeal court for the most vulnerable litigants, turning provisional enforcement into an insurmountable obstacle to appeal.

It is precisely this characterisation that made the situation delicate. Since removal from the list is a measure of judicial administration, it escapes in principle from avenues of appeal. A litigant whose appeal had been struck off the list was therefore apparently left without any means of challenging a decision that may nonetheless prevent them from putting their arguments on appeal. The judgment of 11 June 2026 qualifies this finding.

What Were the Facts of the Case Decided on 11 June 2026?

A person had been ordered by a judgment of a Court of First Instance (tribunal judiciaire), on 13 January 2022, to pay various sums to a condominium owners’ association, in proceedings begun in July 2020. They appealed against that judgment. As provisional enforcement was automatic, they applied to the First President of the court of appeal to stop that provisional enforcement. By an order in summary proceedings of 20 July 2022, the First President dismissed their application: the First President held that neither the risk of manifestly excessive consequences nor the existence of a serious ground for reversal had been established.

The respondent, the condominium owners’ association, then applied to the pre-trial judge to have the appeal declared inadmissible and, in the alternative, to have the case removed from the list for failure to comply. The pre-trial judge declared the appeal inadmissible. The appellant referred that order to the full court of appeal (déféré). Ruling on that referral, the court of appeal set the order aside and then, ruling afresh, ordered the case to be removed from the list for failure to comply. To do so, it considered itself bound by the “final” order of 20 July 2022 of the First President: since the First President had refused to stop provisional enforcement, the failure to comply was, in its view, established and removal from the list was justified.

What Question Did the French Supreme Court Have to Decide?

The case actually raised two interlinked questions. The first was a question of admissibility: is an appeal on points of law possible against a decision to remove a case from the list, when that decision is only a measure of judicial administration? The second concerned the merits: is the judge seised of the application for removal from the list bound by the order that previously refused to stop provisional enforcement, or must they examine that application independently?

The defence argued that the appeal on points of law was inadmissible: in the absence of an abuse of power, the judgment under challenge, concerning a measure of judicial administration, could not, in its view, be referred to the French Supreme Court. The appellant, by contrast, argued that the court of appeal, by considering itself bound by the First President’s order, had failed to recognise the extent of its own power to adjudicate, which is precisely an abuse of power opening the way to a challenge.

Why Was the Appeal on Points of Law Admissible Despite Being Directed Against a Measure of Judicial Administration?

The French Supreme Court first recalls the principle: a measure of judicial administration is, as a general rule, not open to any challenge. But it immediately sets out a decisive reservation. Where the measure of removal from the list affects the exercise of the right of appeal, since it freezes the appeal proceedings and may, in practice, deprive the appellant of them, it can be challenged in the event of an abuse of power.

Now, the Court continues, a judge’s failure to recognise the extent of their power to adjudicate constitutes an abuse of power. That is exactly what the court of appeal was criticised for: by declaring itself bound by the First President’s order, it had renounced exercising a power of assessment that nonetheless belonged to it. The appeal on points of law was therefore admissible, despite the decision under challenge being a measure of judicial administration.

Can a Measure of Judicial Administration Be Challenged?

The answer in principle is no: these measures, which concern the organisation of the justice service, can be neither appealed nor referred by way of an appeal on points of law. But case law recognises an exception where the measure goes beyond the mere management of the list and affects a substantive right, here, the right to bring an appeal. The “gateway” of abuse of power then allows the decision to be submitted to the review of the French Supreme Court. This judgment is in keeping with that logic: removal from the list is not just any administrative measure, because its consequences for the appeal proceedings are real and potentially irreversible.

What Does the French Supreme Court Decide on the Merits?

On the merits, the French Supreme Court quashes the appeal judgment. Its reasoning rests on a rigorous combination of several provisions. The order by which the First President, ruling in summary proceedings, had declared inadmissible the application to stop provisional enforcement has no res judicata effect on the merits. It did not finally decide anything on the substance of the dispute. Consequently, it could not relieve the judge seised of the application for removal from the list, on the basis of Article 524, of the duty to examine for themselves the merits of that application.

The Court stresses a reason of substance: the application for removal from the list “does not pursue the same objective and is not based on the same criteria” as the application to stop provisional enforcement. By considering itself bound by the order of 20 July 2022 and refusing to examine the grounds of the referral, the court of appeal failed to recognise the extent of its power to adjudicate and breached Articles 514-3, 524 and 537 of the Code of Civil Procedure, together with the principles governing abuse of power. The quashing is partial: it concerns the removal from the list and the order for the costs of the referral, and the case is remitted to the Court of Appeal of Nîmes.

Why Are Stopping Enforcement and Removal from the List Based on Different Criteria?

This is the didactic heart of the decision. The two mechanisms do use a common criterion, “manifestly excessive consequences”, but they do not overlap. Stopping provisional enforcement (Article 514-3) additionally requires a serious ground for annulment or reversal, a condition foreign to removal from the list. Conversely, removal from the list (Article 524) can be set aside where the appellant is unable to comply, a criterion that has no equivalent in the application to stop enforcement. Refusing to stop provisional enforcement and refusing removal from the list are therefore not at all the same as answering the same question.

The logical consequence is inescapable: the rejection of the first application in no way prejudges the fate of the second. The judge ruling on removal from the list retains the full power, and the duty, to assess whether the appellant is not, for example, unable to comply, regardless of what the First President may have decided on stopping enforcement.

What Is the Practical Scope of This Judgment for Litigants?

The contribution is twofold and firmly protective of the litigant challenging an order to pay. On the one hand, the judgment confirms that a decision to remove a case from the list, despite its characterisation as a measure of judicial administration, does not entirely escape review: the avenue of an appeal on points of law for abuse of power remains open where the right of appeal is at stake. On the other hand, and this is the essential point, it prevents the judge ruling on removal from the list from taking refuge behind an earlier decision unfavourable to the appellant. Each application must be examined on its own, with its own criteria.

For the firm, which defends borrowers, guarantors and bank customers ordered to pay at first instance, this decision is a useful guarantee. It prevents the “domino” effect by which a first refusal to stop provisional enforcement would automatically seal the fate of the appeal through removal from the list. It preserves, at the removal stage, the examination of the appellant’s real situation, and in particular any impossibility of paying.

What Practical Levers Does an Appellant Ordered to Pay a Bank Have?

Several practical lessons emerge for anyone appealing an order to pay, whether it concerns a loan balance, a guarantee or a disputed overdraft:

• Do not give up after a refusal to stop provisional enforcement. That refusal does not amount to automatic removal from the list: the application for removal will have to be argued separately.
• Document the impossibility of complying. Where the appellant objectively cannot afford to pay, proof must be provided (income, expenses, financial position), because this criterion, specific to Article 524, can defeat removal from the list even if the stopping of enforcement has been refused.
• Where appropriate, put forward the manifestly excessive consequences of enforcement in the debate on removal from the list, assessing them as at the date on which the judge ruling on removal decides.
• Watch for abuse of power. If the judge refuses to exercise their power of assessment and declares themselves bound by an earlier decision, the decision to remove the case from the list can be challenged by way of an appeal for abuse of power.

This framework applies regardless of the creditor’s identity. But it takes on particular significance when facing a bank, whose means of enforcement are considerable and which does not hesitate to apply for removal from the list in order to neutralise an appeal. The decision recalls that access to the appeal court cannot be locked by a procedural shortcut.

What Should You Take Away from This Judgment?

The judgment of 11 June 2026 is a procedural decision, but one of concrete significance for everyone challenging an order to pay. It enshrines a protection: removal from the list, although a measure of judicial administration, must be examined independently and cannot follow mechanically from an earlier refusal to stop provisional enforcement. A judge who considers themselves bound by that order commits an abuse of power, opening the way to an appeal on points of law. For an appellant ordered to pay a bank or a creditor, the route of appeal remains open as long as their real situation, and in particular their impossibility of complying, has not been genuinely examined. Faced with an application for removal from the list, it is best to be advised by counsel in order to put forward all the arguments specific to Article 524: this is often where the survival of the appeal is decided.

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