Court-Authorized Bailiff’s Reports: An Effective Evidentiary Tool, Including in International Matters

A report ordered in interim proceedings (référé) or on ex parte application (sur requête) on the basis of Article 145 of the French Code of Civil Procedure makes it possible to «preserve or establish, prior to any legal proceedings, evidence of facts on which the resolution of a dispute might depend.» It enables a bailiff (huissier / commissaire de justice) to record the breach of distribution or franchise agreements, evidence of unfair competition or free-riding (parasitisme), the condition of an asset or stock prior to termination of a contract, or to secure digital data before it disappears. A thorough understanding of the conditions for obtaining such an order and of its limits — particularly in international disputes — is directly decisive for the effectiveness of an evidence-gathering strategy.

Key points to remember

• An application for a court-ordered report, whether by interim proceedings or ex parte application, must be submitted to the presiding judge of the court that would have jurisdiction over the merits of the dispute, or of the court in whose jurisdiction the measures are to be carried out — bearing in mind that a jurisdiction clause cannot be invoked against the applicant.
• A bailiff’s report sought under Article 145 of the Code of Civil Procedure requires neither urgency nor the absence of any serious dispute: it is a standalone measure, distinct from general interim (référé) proceedings.
• The application must be drafted so as to satisfy all of the substantive conditions set by French law, and must be prepared well in advance to allow the bailiff to carry out the report effectively and beyond challenge.
• A bailiff’s report carried out pursuant to an ex parte order is the most effective method, but the non-adversarial nature of the application for authorization must be justified.
• In international matters, the French court may order a report at the request of a French or foreign party, provided the report is to be carried out in France (with different conditions applying depending on whether the Brussels I bis Regulation applies).

Why and how to obtain judicial authorization for a bailiff’s report ?

A bailiff’s report is particularly useful where there is a suspicion of unfair competition, free-riding, or breach of a contractual or post-contractual obligation. The report is drawn up by a commissaire de justice (bailiff), but without judicial authorization the bailiff cannot enter premises operated by third parties or compel them to provide information.

Among the various pre-trial investigative measures (mesures d’instruction in futurum) that a court may order under Article 145 of the Code of Civil Procedure (expert appraisal, investigation, witness examination, production of documents, etc.), the bailiff’s report makes it possible to describe and fix facts or documents at a given moment in time, at the premises of a contracting party or a competitor.

An application for a report submitted to the court must satisfy four cumulative conditions:

• A potential dispute, but no proceedings yet pending on the merits: the court (or arbitrator) must not already be seized of proceedings on the merits. A credible future dispute must be supported by specific evidence, without it being necessary to establish that the claim is well-founded.
• The existence of a legitimate reason (motif légitime) to establish evidence of facts on which the resolution of a dispute might depend. The legitimate reason is built around the existence of a foreseeable future dispute, and the concrete usefulness and necessity of the measure to protect the applicant’s rights. Business secrecy thus constitutes only a relative obstacle, which yields to a sufficiently established legitimate reason (Cass. 2e civ., 24 March 2022, No. 20-21.925), as, potentially, do medical confidentiality and the right to respect for one’s home or private life.
• The establishment or preservation of evidence: the measure sought must be aimed at gathering evidence, or preserving evidence at risk of being lost.
• And the proportionality of the reporting measure to the objectives pursued (Cass. 2e civ., 25 March 2021, No. 20-14.309; Cass. com., 28 June 2023, No. 22-11.752). The measure must therefore be precisely limited in time and in scope, so as to avoid any general investigative measure.

Where a large number of documents are being sought (invoices, emails, minutes, etc.), it is advisable to limit the measure using keywords specific to the dispute at hand. Similarly, where a report is to be carried out at a competitor’s premises, the order authorizing the report may direct the bailiff to keep some or all of the seized documents under seal pending a court decision (in interim proceedings) resolving any disputes relating to the protection of business secrets.

Judicial authorization may be sought either by way of an interim summons (assignation en référé), which involves a prior adversarial hearing, or by way of an ex parte application (requête), a unilateral, non-adversarial procedure. An ex parte order is the most effective route because of its element of surprise, but it requires that it be expressly justified — in the application (by the party) and then in the order (by the presiding judge) — that a prior adversarial hearing would compromise the effectiveness of the measure. This ground must be real and specific, and typically arises where there is a risk that the elements to be recorded could be altered or destroyed, or where the opposing party is likely to tamper with the evidence (Cass. 2e civ., 17 March 2016, No. 15-12.955).

The Article 145 interim procedure is autonomous in relation to the conditions applicable to general interim proceedings: neither urgency nor the absence of any serious dispute is required (Cass. ch. mixte, 7 May 1982).

Which court has territorial jurisdiction to authorize the report?

Since Decree No. 2025-619 of 8 July 2025 (known as the “Magicobus 2” decree), Article 145 of the Code of Civil Procedure gives the applicant a choice of jurisdiction: the applicant may apply to

• either the presiding judge of the court that would have jurisdiction over the merits of the dispute,
• or the presiding judge of the court in whose jurisdiction the measure is to be carried out.

Where the investigative measure concerns real property, only the court of the place where the property is located has jurisdiction.

Case law now holds, as a matter of principle, that a jurisdiction clause cannot be invoked against a party applying to the judge presiding over interim or ex parte proceedings, who has jurisdiction under the rules referred to above (Cass. com., 13 September 2017, No. 16-12.196). Likewise, prior conciliation clauses (Civ. 3e, 28 March 2007, No. 06-13.209) — and probably prior mediation clauses as well — do not apply before an “Article 145 procedure” is initiated.

Does the French court have jurisdiction to authorize a report despite a foreign court’s jurisdiction over the merits?

Provided the report is to be carried out in France, it is possible to apply to the French court even though the dispute on the merits could be brought before a foreign court. However, depending on whether the defendant is established within the EEA — in which case jurisdiction is governed by the Brussels I bis Regulation or the Lugano Convention — or outside the EEA — in which case the jurisdiction of the French courts is governed by the Code of Civil Procedure — the applicable rules differ.

More specifically, in the case of parties established within the EU, Article 35 of the Brussels I bis Regulation provides that provisional or protective measures available under the law of a Member State may be applied for before the courts of that State, even where the courts of another Member State have jurisdiction over the merits. However, the CJEU has adopted a strict reading of this article, limiting this possibility to measures “intended to preserve a factual or legal situation so as to safeguard rights the recognition of which is sought elsewhere…” (ECJ, Reichert, 26 March 1992, C-261/90).

Measures that merely seek to assess the merits of a potential claim, determine its basis, or evaluate the arguments that could be raised do not fall within the concept of provisional or protective measures under Article 35 that can be sought from a court lacking jurisdiction over the merits (ECJ, St Paul Dairy, 28 April 2005, C-104/03). The Cour de cassation has aligned itself with this approach since 2021, and requires the court to determine whether the measure specifically seeks to protect the applicant against a risk that evidence may be lost (Cass. 1re civ., 27 January 2021, No. 19-16.917).

Compared with similar measures available under other European systems, the Article 145 report has the advantage of being very broadly applicable, both in terms of the scope of the tasks that may be ordered and the conditions for obtaining it. This is why, in such cases, it is worth being able to justify the jurisdiction of the French court seized under Article 145 by reference to its prospective jurisdiction over the merits (for example, through a jurisdiction clause).

Where a party is established outside the EU (or outside the Lugano Convention), the international jurisdiction of the French court to authorize a report in France is governed by ordinary French rules on conflicts of jurisdiction. Extending Article 145 of the Code of Civil Procedure to the international sphere, the French court will have jurisdiction whenever the report is to be carried out in France. Moreover, the Cour de cassation has held that Article 145 measures are governed by French procedural law, and that the court is not required to assess the “legitimate reason” by reference to the foreign law applicable to the merits (Cass. 1re civ., 3 November 2016, No. 15-20.495).