By two arbitral awards dated 3 December 2000 and 21 January 2013, the Democratic Republic of the Congo was ordered to pay to the company Commisimpex (“Commisimpex”) the total amount of 986,000,000.00 euros (respectively 232,000,000.00 and 754,000,000.00 euros). The enforceability of these awards had been recognized in France.
By order dated 14 November 2016, Commisimpex obtained the attachment of a debt that the company Air France SA (“Air France”) owed to the Democratic Republic of Congo.
In a letter dated 24 November 2016, Air France stated that the debts due amounted to 50,246.35 euros. It added that these debts were of a sovereign nature and could therefore not be subject to attachment. On 6 December 2016, Commisimpex notified Air France of a partial release of the attachment.
On 9 December 2016, the Democratic Republic of the Congo and Air France filed a suit against Commisimpex before the Enforcement Judge (juge de l’exécution) in view of obtaining an annulment and a complete release of the attachment. On 9 March 2017, the Enforcement Judge ordered the full release of the attachment.
Commisimpex appealed this judgment.
Commisimpex considered that by ordering a full release of the attachment of 14 November 2016, the Enforcement Judge deprived it of all forms of recourse against Air France in the event that the latter modified its declarations regarding the extent of the debts.
The Court of appeal stated that Air France rightly seized the Enforcement judge to request a total release of the attachment insofar as Commisimpex, which declared the release of the attachment to be partial, intended to eventually extend the effects of the attachment, should Air France modify its declarations.
Under Article L.211-3 of the French Code of civil enforcement procedures, a third party subject to an attachment has the obligation to declare the extent of its obligations towards the debtor. In principle, this declaration has to be provided without delay.
In this case, Air France acknowledged receipt of the attachment on 15 November 2016 and its declaration was issued on 24 November 2016. It was not established that Air France could still modify this declaration. Consequently, Commisimpex wrongly described the attachment of 6 December as partial.
Commisimpex cannot argue that a total release of its attachment would deprive it of any recourse against Air France, were the latter to modify its declarations. Indeed, nothing prevents Commisimpex from bringing an action in tort against Air France if it considers that its statements are inaccurate or false. It failed to do so in this case.
The Court confirmed the judgment which ordered the total release of the attachment of 14 November and stated that the nature of the debts is irrelevant.