Taking an Unpaid Invoice (B2B) to the Commercial Court

An invoice falls due, the business customer does not pay, and reminders go unanswered. For a company, the question is not only "how do I get my money back", but "which procedure should I choose to move quickly without taking the wrong route". Three doors open before the commercial court (tribunal de commerce): the payment order (injonction de payer), interim payment in summary proceedings (référé-provision) and the summons on the merits (assignation au fond). Each answers a specific situation, and taking the wrong turn costs months. This guide sets out the decision tree between these three procedures, the criteria for choosing between fast-track proceedings and proceedings on the merits, and the rules of jurisdiction for bringing an unpaid invoice before the commercial court.

Before acting: checking that the debt is recoverable as it stands

No procedure will make up for a poorly prepared file. Before seising the court, a company must ensure that its claim has three qualities: it must be certain, liquidated and due. Certain, that is, not disputed in principle. Liquidated, that is, precisely quantified. Due, that is, having fallen due for payment. An invoice whose amount is in dispute, or whose due date has not yet been reached, opens no fast-track route.

Proof of the debt rests on a body of documents: the signed purchase order, the contract or the accepted general terms of sale (CGV), the delivery note or the report of acceptance of works, the invoice itself, and the history of reminders. The more complete this file, the more practicable the fast-track route becomes. Conversely, if the exchanges show that the customer disputes the quality of the service or alleges a defect, the dispute becomes "serious" in the procedural sense, and the fast-track procedures close.

The debtor's solvency must also be checked. Obtaining an enforceable title against a company that has ceased payments is pointless if no asset can be seized. A review of the published accounts, of registered security interests and pledges, or even a solvency enquiry, guides the choice: against a fragile debtor, speed takes priority, because one must rank ahead of the other creditors.

Ancillary amounts in B2B debts

Between businesses, an unpaid invoice is not limited to the principal amount. Article L441-10 of the French Commercial Code sets the payment periods (in principle sixty days from the date of issue of the invoice, or forty-five days from the end of the month) and provides for late payment penalties from the first day of delay. To these penalties is added a fixed recovery cost allowance of €40 per invoice (Article D441-5 of the French Commercial Code), and the creditor may claim additional compensation on supporting evidence if the actual costs are higher.

These ancillary amounts have a strategic value. They increase the sum claimed, but above all they remind the debtor that delay has a cost. A formal notice (mise en demeure) setting out precisely the principal, the late payment interest and the fixed allowance is sometimes enough to unlock payment before any proceedings are started. The amicable phase, the court procedures and then the enforcement measures are presented in our overview of procedures for recovering an unpaid invoice.

The three routes before the commercial court: the decision tree

Faced with an unpaid invoice, the commercial court offers three procedures that are not equivalent. The right approach is to rank them along two axes: the degree to which the debt is disputed and the urgency of recovery.

The payment order: the route for an undisputed debt

The payment order (injonction de payer) is the most economical procedure. Governed by Articles 1405 et seq. of the French Code of Civil Procedure, it is based on a written application to the court registry (greffe), without a hearing and without the debtor being informed at this stage. The judge examines the documents alone and, if the claim appears well founded, issues an order for payment.

This procedure presupposes a debt that is contractual, certain in amount and well documented. It typically suits the invoice for goods delivered, accepted without reservation and never disputed. The main advantages are the low cost and the absence of an initial adversarial debate.

Its weakness lies in the opposition. Once the order has been served by a bailiff (commissaire de justice), the debtor has one month to lodge an opposition. If it does so, the case moves into an ordinary procedure on the merits, with a hearing and argument. In other words, the payment order is formidably effective against a passive or bad-faith debtor who does not react, but it loses all value against a combative debtor who will systematically dispute in order to gain time.

In practical terms: a small mechanical engineering business delivers a batch of parts to an industrial customer, an invoice of several thousand euros, a signed delivery note, no complaint in six months. The customer does not pay and no longer responds. The payment order is here the most rational route.

Interim payment in summary proceedings: the route for urgency without serious dispute

Interim payment in summary proceedings (référé-provision), provided for by Article 873, paragraph 2, of the French Code of Civil Procedure before the commercial court, allows the president of the court to award the creditor an interim payment where the existence of the obligation is not seriously open to challenge. It is the flagship procedure for fast recovery between companies.

Where the existence of the obligation is not seriously open to challenge, [the president] may award the creditor an interim payment. (Article 873, paragraph 2, of the French Code of Civil Procedure)

Here, the debt may even be wholly unpaid without having been formally accepted; what matters is that the debtor raises no dispute that deserves examination on the merits. The summary proceedings are adversarial: the debtor is summoned, a hearing is held at short notice, and the summary order is enforceable as of right, generally on a provisional basis. The "interim payment" may correspond to the whole invoice where it is not in dispute.

The main advantage of the interim payment procedure is speed combined with its adversarial nature. Unlike the payment order, there is no opposition mechanism that makes everything start again: the debtor can only appeal, and this does not suspend enforcement. Summary proceedings are therefore preferable where the urgency is real (risk of insolvency, need for cash) and the debt, even if not expressly acknowledged, is not seriously open to dispute.

The limit is the notion of "serious dispute". As soon as the debtor raises a credible argument (a documented defect, a defence of non-performance, set-off against a reciprocal claim), the judge in summary proceedings declares that the dispute exceeds his or her powers. One must then turn to the court on the merits. The conditions for obtaining an interim payment where the debt is not seriously open to challenge are examined in our article on interim payment in summary proceedings.

The summons on the merits: the route for a genuine dispute

The summons on the merits for an unpaid invoice is the ordinary procedure. It is necessary as soon as the debt is subject to a serious dispute, or where the dispute goes beyond the simple invoice: a challenge to the quality of the service, a discussion of the scope of the contract, a counterclaim by the debtor, the application of disputed contractual penalties.

The creditor serves a summons through a bailiff, the case is listed for hearing, the parties exchange their submissions and exhibits, and the court then rules by a judgment on the merits that finally resolves the dispute. This route is longer, potentially several months or even more if an expert is appointed, but it is the only one that allows a genuine dispute to be cleared and a final title on the merits to be obtained.

The summons on the merits should not be seen as a failure of the fast-track routes. It is sometimes the relevant initial choice: where the amount is high, where the debtor is solvent but organised to dispute, or where the commercial relationship justifies settling the merits once and for all. It is also possible to combine approaches, for example by obtaining an interim payment in summary proceedings to secure part of the payment, then pursuing the merits for the disputed balance.

How to choose: the selection criteria

The logic of the decision tree comes down to three successive questions.

First question: is the debt disputed, or likely to be? If the debtor is passive and the documentary file is solid, the payment order is the natural starting point, economical and fast. If there is no serious dispute but the debtor may react, interim payment in summary proceedings is safer because an opposition there does not reset the clock.

Second question: is the urgency real? A risk of insolvency, imminent collective proceedings or a vital need for cash point towards interim payment in summary proceedings, whose order is immediately enforceable. Without particular urgency and with a passive debtor, the payment order is enough.

Third question: is the dispute serious? As soon as there is a debate on the substance (quality, quantity, conformity, set-off), only the summons on the merits can resolve it. Attempting summary proceedings on a seriously disputed debt wastes time, as the judge sends the parties to seek a remedy elsewhere.

The routing can be summarised as follows:

• Undisputed debt, passive debtor, no urgency: payment order.
• Debt not seriously open to challenge, urgency or reactive debtor: interim payment in summary proceedings.
• Serious dispute, complex case, high amount and combative debtor: summons on the merits for the unpaid sum.

One last strategic point: the failure of a fast-track route does not bar the next. An opposition to a payment order, or a summary decision finding a serious dispute, naturally redirects the case towards the merits. The aim is not to pile up procedures needlessly, but to choose from the outset the route proportionate to the case.

Which commercial court to seise? The question of jurisdiction

Choosing the right procedure is not enough: the right court must also be seised. A summons served before a court that lacks jurisdiction exposes the claimant to a plea of lack of jurisdiction that delays everything.

Subject-matter jurisdiction: why the commercial court

The commercial court hears disputes between traders and between commercial companies, as well as disputes relating to commercial acts. Where the dispute is between two businesses in the course of their commercial activity, the jurisdiction of the commercial court applies for an unpaid B2B invoice.

The situation becomes more complicated where one of the parties is not a trader. Against a civil debtor (a non-commercial liberal profession, an association, an individual), the dispute falls in principle within the judicial court (tribunal judiciaire) and not the commercial court. Where the contract is "mixed" (a trader dealing with a non-trader), a non-trader claimant may choose to bring the case before the commercial court or the judicial court, whereas a trader claimant suing a non-trader must in principle go to the civil court. This prior check of the parties' status avoids a transfer.

Territorial jurisdiction: which court geographically

The general rule is found in Article 42 of the French Code of Civil Procedure: the court with territorial jurisdiction is that of the place where the defendant resides, that is, the registered office of the debtor company in the case of a legal entity. Where the debtor company is established outside France, the available instruments are presented in our article on the European order for payment and the European enforcement order.

In contractual matters, Article 46 of the French Code of Civil Procedure gives the claimant an option, and the claimant may also bring the case before:

• the court of the place of actual delivery of the goods for a sale of goods,
• the court of the place of performance of the service for a service contract.

This option has considerable practical significance for the creditor, who can often choose the court closest to its own place of business where it delivered or performed the service.

Finally, Article 48 of the French Code of Civil Procedure validates jurisdiction clauses between traders, provided that they are specified in a very conspicuous manner in the undertaking of the party against whom they are relied on. In other words, a clause in accepted general terms of sale that clearly designates the commercial court of a given town prevails over the preceding rules. Hence the importance of drafting, and having accepted, terms of sale containing a clear jurisdiction clause, which makes it possible to "domicile" one's recovery litigation in advance.

Costs, timing and enforcement of the title obtained

Cost varies greatly depending on the route. The payment order is the least expensive, with modest registry fees and the cost of service by a bailiff. Interim payment in summary proceedings and the summons on the merits require a summons served by a bailiff, entry in the court list and, most often, the assistance of a lawyer. The costs incurred may be borne in part by the debtor ordered to pay, as costs (dépens) and under Article 700 of the French Code of Civil Procedure, but rarely in full.

Timing follows the same logic. The payment order produces an order within a few weeks if the debtor does not react. Interim payment in summary proceedings generally succeeds within a few weeks to a few months depending on the court. The summons on the merits runs over a longer timescale, especially where there is an expert appointment or multiple adjournments.

Obtaining a decision does not mean being paid. The title must then be enforced. A payment order that has become final, or a summary order, or a judgment on the merits, authorises the creditor to instruct a bailiff to carry out enforcement measures: attachment of bank accounts (saisie-attribution), seizure and sale of movable property (saisie-vente), attachment of the debtor's receivables. This is where the solvency checked beforehand takes on its full meaning: a fine enforceable title against an empty shell remains a dead letter.

Where the debtor is subject to collective proceedings (safeguard, reorganisation or judicial liquidation), the logic changes entirely. Individual actions are suspended and the creditor must file its claim with the court-appointed creditors' representative (mandataire judiciaire) within the statutory periods. Hence the value of acting quickly when a debtor shows signs of fragility, before the opening of proceedings that freeze all action.

Conclusion: choosing the proportionate route, not the most aggressive

The temptation to "strike hard" from the outset is a bad reflex. The most effective procedure for bringing an unpaid invoice before the commercial court is the one proportionate to the reality of the file. Against a passive debtor and an undisputed debt, the payment order settles the matter at the lowest cost. Faced with urgency and a debt not seriously open to challenge, interim payment in summary proceedings offers the best balance of speed and security. As soon as there is a genuine dispute, the summons on the merits for the unpaid sum is the only serious route, and trying to avoid it at all costs wastes time.

The position is clear: investing in the preparation of the file and in well-drafted terms of sale produces more recoveries than the choice of one procedure or another. Before any proceedings, a company should have its claim audited by a lawyer from three angles: whether the sum is certain, liquidated and due, the debtor's real solvency, and the competent court in light of its terms of sale and the place of performance. It is this audit, and not the procedure itself, that determines the success rate of recovery.

Frequently asked questions

Payment order or interim payment in summary proceedings: which to choose for an unpaid invoice?

The payment order suits an undisputed debt against a passive debtor: it is inexpensive and takes place without a hearing, but a mere opposition by the debtor restarts a procedure on the merits. Interim payment in summary proceedings is preferable in cases of urgency or where the debtor may react, because the order is immediately enforceable and an appeal does not suspend enforcement. Summary proceedings do, however, require that the debt not be seriously open to challenge (Article 873 of the French Code of Civil Procedure).

Which commercial court has jurisdiction for an unpaid B2B invoice?

As a rule, it is the court of the place of the debtor's registered office (Article 42 of the French Code of Civil Procedure). In contractual matters, Article 46 also allows the case to be brought before the court of the place of delivery of the goods or performance of the service. Finally, a jurisdiction clause between traders, valid if very conspicuous (Article 48 of the French Code of Civil Procedure), prevails over these rules and makes it possible to designate the competent court in advance.

How long does a recovery procedure before the commercial court take?

The payment order results in an order within a few weeks if the debtor does not lodge an opposition. Interim payment in summary proceedings is generally dealt with within a few weeks to a few months depending on the court's workload. The summons on the merits is the longest, especially where there is an expert appointment or adjournments, and may extend over several months. To these periods is added the time needed to enforce the title once the decision has been obtained.

Can penalties and costs be claimed in addition to the invoice?

Yes. Between businesses, Article L441-10 of the French Commercial Code provides for late payment penalties that are payable from the day after the due date, without any reminder being necessary. A fixed recovery cost allowance of €40 per invoice is added (Article D441-5 of the French Commercial Code), together with additional compensation on supporting evidence if the actual costs are higher. These sums are cumulative with interest and may be claimed in the proceedings.

What should be done if the debtor disputes the invoice?

As soon as a serious dispute appears (defect, non-conformity, defence of non-performance, set-off), the fast-track routes close. The judge in summary proceedings will decline jurisdiction and the payment order will move to the merits in the event of an opposition. A summons on the merits for the unpaid sum must then be brought, the only procedure that allows the dispute to be finally resolved after a full adversarial debate.

Is a summons on the merits compulsory for large invoices?

No, the amount alone does not determine the procedure. A high invoice that is perfectly documented and undisputed can be the subject of interim payment in summary proceedings. By contrast, a large amount combined with a combative and solvent debtor often justifies a summons on the merits from the outset, in order to obtain a final title rather than an interim payment that may be called into question. The decisive criterion remains whether or not the dispute is serious.

Is a lawyer needed to bring a case before the commercial court?

For a payment order, the application may be made without a lawyer. For interim payment in summary proceedings and the summons on the merits, representation by a lawyer is in principle required before the commercial court, subject to the particular cases provided for by the texts. Beyond the obligation, the involvement of a lawyer secures the choice of procedure, the drafting of the documents and the verification of jurisdiction, all steps where a mistake costs months.