It is appropriate to look at a judgment rendered by the Court of Cassation in early 2019 that comes to address the problem of the service of a judicial act to a foreign state.
In this case, it is a question of a wage dispute with an employee of the embassy of the United States in Paris who had initiated an action before the Council of Prud’hommes of Paris.
Mr. G was hired on a fixed-term contract by the United States Embassy in Paris, effective January 17, 1989.
Having been dismissed for economic reasons, he appealed to the industrial tribunal of Paris to contest the reasons for his dismissal and a claim for compensation for his damages.
It should be noted that he died in the course of the proceedings, which procedure was taken over by his successors.
A first judgment deemed contradictory of October 5, 2009 condemned jointly the Ambassador of the United States of America in France and the United States of America to pay the G consorts acting, as rights holders of Mr G deceased, the sum of 136,000 euros as severance pay without cause real and serious, this, under penalty of 1 000 euros per day late from the 3rd month of notification of the judgment.
The judgment was handed over to the Paris prosecutor’s office and sent through the diplomatic channel to the French Embassy in the United States, which notified it to the State Department in Washington.
A second judgment deemed contradictory of May 22, 2012 condemned Madam, the Ambassador of the United States of America in France in his capacity as representative of the United States and as head of diplomatic mission and the United States of America. America represented by the head of the Justice Department in Washington, France, to pay the G consorts the sum of 734 000 euros, with interest at the legal rate, for the liquidation of the penalty.
This judgment was handed over to the Paris prosecutor’s office, who sent it to the Paris Ministry of Justice, which forwarded it to the Protocol Department of the Ministry of Foreign Affairs, which handed it over to the American Embassy in Paris on October 9, 2012 by a note verbale.
By two registered letters of July 8, 2014, received at the registry of the Court of Appeal of Paris on July 9, 2014, the United States of America appealed both judgments.
In addition, Madam Ambassador of the United States in France, intervened voluntarily to the instance, the two appeals were joined.
The Ambassador of the United States of America and Ms. Y subsequently appealed to the Court of Cassation and complained that the Judgment declared inadmissible the appeal lodged by the United States of America against the judgment rendered October 5, 2009.
It should be recalled that a number of texts organize « the form of mutual legal assistance » to facilitate the notification of an act abroad.
In fact, it was regulated by the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.
Regulation (EC) No 1393/2007 of the European Parliament and of the Council of 13 November 2007 regulates the service in the Member States of judicial and extrajudicial documents in civil or commercial matters.
In our case, the United States of America, the Ambassador of the United States of America and Mrs. Y complained that the decision had not been translated into English.
They considered that, no matter whether the formality was provided for, neither by an international convention nor by a text, the requirement of a translation for the use imposed by international comity should be sanctioned by irregularity. notification.
The Court of Cassation is interested in the provisions in force in this area.
It recalls that according to Article 684, paragraph 2, of the Code of Civil Procedure, the act intended to be notified to a foreign State, to a foreign diplomatic agent in France or to any other beneficiary of immunity from jurisdiction delivered to the prosecutor’s office and transmitted through the Minister of Justice for service through the diplomatic channel, unless by virtue of a European regulation or an international treaty the transmission may be effected by another means .
The United States of America is party to the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters and considers that the notification of a judicial act to a State party to the Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters is governed by this Convention and the latter does not require that the notified document be translated into the language of the requested State.
However, the problem did not revolve around the actual legal part of the notification but rather the practical conditions of the notification as such.
In France the terms « diplomatic channels » cover two channels of notification:
– a circuit called « long » at the end of which the act is given to the foreign ministry of the foreign state through the Embassy of France;
– a circuit called « short » in which the act is given by note verbale of the Protocol to the Embassy of the foreign state in France.
This distinction is made with regard to the way in which the State is designated in the act.
If it is mentioned that the act is intended for a foreign state represented by its embassy or at the embassy itself, the act is handed over to the embassy of the foreign state in France;
If it is mentioned that the act is intended for a foreign state, the act is handed over to the foreign ministry of the foreign state through the embassy of France.
In this case, the judgment concerned both the United States of America and the United States Embassy in France.
A notification was made on October 4, 2012 by the so-called « short » circuit by note verbale of the protocol to the Embassy of the United States of America in Paris,
The Embassy was asked « to acknowledge receipt of it by note verbale in duplicate ».
The United States clarifies that there is no general note prior to the October 2012 notification of their refusal in principle of this simplified method of diplomatic notification, which would have the effect, by invalidating the notification, of letting the time of appeal.
The Court of Cassation notes that it was not apparent from any of its findings that the United States of America had consented to the notification of deeds through the diplomatic channel being made to their Embassy in France and by diplomatic note of 20 November 2012, the Embassy of the United States of America in France had refused the act by making known to the French Ministry of Foreign Affairs that the official diplomatic channel had not been used to bring the case to the attention of the recipient of the act,
The result of which was that the notification at issue could not be regarded as a regular notification made through the diplomatic channel in accordance with Article 9, paragraph 2, of the Convention of 15 November 1965.
The Court of Cassation recalled that the notification through the diplomatic channel requires that the Ministry of Justice, in possession of the notification given to the prosecutor’s office, submit the act to the Ministry of Foreign Affairs, that it transmit the act to the Ambassador from France to the foreign State, the recipient of the act, for the Embassy to return the act to the competent services of the foreign State.
That in this case, the notification of the judgment of May 22, 2012 was given by the French Ministry of Foreign Affairs to the Embassy of the United States of America in France and that the notification thus made did not meet the requirements of a notification through the diplomatic channel so that the Court of Cassation breaks the judgment visas Article 684 paragraph 2 of the Code of Civil Procedure imposing the diplomatic channel.
As a result, the notification being irregular, the Ambassador of the United States of America in France and the United States of America was perfectly entitled to appeal the decision in dispute.
This decision is interesting because it shows that the notification of a French court decision to a foreign state as well as to its embassy can be an obstacle course and that there may be a significant gap between the legal approach of a notification to a foreign State, and or to its Embassy, of a French court decision.
Between short circuit and long circuit, this litigation shows that international practice offers specific lines of protest, which should not be ignored, at the risk of getting caught up in endless international procedural dispute.
The role of the council is then to perfect this legal certainty in the notification of the acts and decisions of justice at the national level as well as at the international level.
Article written by Maître Laurent LATAPIE,
Lawyer, Doctor in Law,