Provisional enforcement (exécution provisoire)

Provisional enforcement allows a court decision to be enforced before the time limits for appeal have expired. Since the decree of 11 December 2019, Article 514 of the Code of Civil Procedure provides that first-instance decisions are enforceable as of right, unless the law or the decision itself provides otherwise. In patent litigation, it determines when a prohibition on marketing takes effect.

The regime of provisional enforcement

The court may set aside provisional enforcement, in whole or in part, of its own motion or at a party's request, where it considers it incompatible with the nature of the case, under Article 514-1 of the same Code. It may also make it conditional on the provision of security. On appeal, the First President may stay enforcement where there is a serious ground for annulment or reversal and enforcement is likely to have manifestly excessive consequences, provided the party submitted observations at first instance.

What is at stake in patent cases

An injunction with provisional enforcement obliges the defendant to withdraw its products even though the patent may still be invalidated on appeal. The risk is symmetrical: a patent holder who enforces a decision later reversed does so at its own risk and must compensate the harm caused. Practice therefore consists in seeking enforcement of the injunction while debating the security, as in an application for a provisional injunction.

Before the UPC

Decisions of the Unified Patent Court are enforceable in the Contracting Member States and an appeal has no suspensive effect, unless otherwise decided by the UPC Court of Appeal. Article 74 of the Agreement nevertheless gives suspensive effect to an appeal against a decision on the invalidation of the patent. The Court may also make enforcement conditional on the provision of security.

Key points

The principle was reversed in 2019: a party must now request, and justify, the setting aside of enforcement rather than obtain enforcement. The defendant must therefore prepare its observations at first instance, or it will no longer be able to apply effectively to the First President. The amount of the security is often the real issue in the discussion.

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This glossary entry is general in scope and does not constitute legal advice.

Dhenne Avocats litigates patent disputes before the Paris Judicial Court, the Paris Court of Appeal and the Unified Patent Court. Where the question arises in a real case, the useful moment is almost always before proceedings are issued.

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