Introduction

In its decision no. 657 F-B of 27 November 2024, the First Civil Chamber of the Cour de Cassation confirmed the enforceability in France of a decision of the Geneva Court of Justice. This case was part of a complex framework involving companies based in the Cayman Islands and offences recognised in Switzerland. At the heart of the debate was the application of the 2007 Lugano Convention to a civil judgment handed down by a foreign criminal court.

The facts

Mrs [K] and her husband, Mr [E], were shareholders in the Swiss company Avendis Capital, created in 2001. This company had set up an investment fund, Avendis Global Fund, made up of two Cayman Islands companies: Avendis Enhanced Fixed Income Trading Ltd (AEFI) and Avendis Global Strategies Trading Ltd (AGS).

In 2020, the Geneva Court of Justice ordered Mrs [K] and Mr [E] to indemnify these companies jointly and severally for recognised criminal offences, giving rise to their civil liability. The Paris Court declared this decision enforceable in France on 2 December 2021, which led Mrs [K] to lodge an appeal with the Cour de cassation.

The arguments raised

Several grounds of appeal were raised:

1. Inapplicability of the Lugano Convention: the appeal argued that convictions handed down by a foreign criminal court in the context of a civil action fell outside the scope of that Convention.
2. The non-final nature of the foreign decision: the appeal challenged the recognition of the exequatur in the absence of proof that the Swiss judgment was irrevocable.

The position of the Cour de cassation

The Court rejected these arguments for the following reasons:

1. Scope of the Lugano Convention:
   • Article 1 of the Lugano Convention provides that it applies in civil and commercial matters ‘whatever the nature of the court or tribunal’.
   • The Court points out that civil actions brought before criminal courts fall within the scope of that Convention, as regards both jurisdiction and the recognition and enforcement of judgments.
   • The judgment against Mrs [K] for damages caused to AEFI and AGS is therefore civil in nature and falls within the scope of that Convention.

‘ Article 1(1) of the 2007 Lugano Convention states: ‘This Convention shall apply in civil and commercial matters whatever the nature of the jurisdiction. In particular, it does not cover fiscal, customs or administrative matters.

In defining its substantive scope, the Convention makes no distinction between Title II, on jurisdiction, and Title III, on recognition and enforcement.

It follows that civil actions brought before the criminal courts fall within the scope of the Convention, both as regards the determination of jurisdiction and the recognition and enforcement of judgments given by the criminal courts in such actions.

After citing Article 1 of the Convention, the judgment notes that the operative part of the Swiss decision of the Criminal Appeal and Revision Chamber also contains provisions of a civil nature, based on the rules relating to civil liability.

On the basis of these statements and findings, and leaving aside the overriding reason based on Article 5 of the Convention, the Court of Appeal correctly deduced that the order made by a Swiss criminal court against Mrs [K] to pay compensation for the damage suffered by AGS and AEFI was a civil matter and fell within the scope of the Convention.

2. Enforcement of the foreign decision:

• The Court found that the Swiss judgment was enforceable in Switzerland, as evidenced by a certificate issued by the competent court.
• It pointed out that the Lugano Convention does not require the foreign judgment to be irrevocable in order to be enforced in France, contrary to the appellant’s argument.

According to Articles 38 and 54 of the 2007 Lugano Convention, subject to the grounds for refusal set out in Articles 34 and 35, judgments given in a Contracting State and enforceable there shall be enforced in the Contracting State addressed, provided that the party requesting the issue of a declaration of enforceability produces the certificate set out in Annex V of the Convention’.

The judgment finds that it is established, by certificate issued on 22 October 2021, that the decision handed down by the Criminal Appeal and Review Chamber is enforceable in Switzerland. »

Conclusion

With this decision, the Cour de cassation confirms the application of the Lugano Convention to civil convictions handed down by foreign criminal courts. The Cour de cassation is thus applying the Lugano Convention correctly.

By Olivier Vibert, Attorney, Paris