A general overview of the French rules of civil and commercial procedure, and how they differ from those in the US.
- This article was first published in The American Lawyer in its supplement "Focus Europe" -
DESCRIPTION OF FRENCH CIVIL AND COMMERCIAL COURTS
In France, at the lower level, the Tribunal de Grande Instance has jurisdiction to hear all matters —in particular civil matters— except those expressly assigned to another Court: notably, commercial Courts hear disputes between traders, financial and
credit institutions, and commercial companies. The Court of Appeals is the normal second level Court. The appellant can lodge an appeal either on the entirety of the first instance decision or only on some aspects of it. The Court of Appeals can only judge on the points appealed by the parties. On these points it judges de novo and re-decide the issue(s) both on matters of fact and law.
The Cour de Cassation is like a Supreme Court. It may only review questions of law referred by the lower Courts. Special counsel admitted in this Court must be retained to argue a case. The Cour de Cassation may either reject the appeal against the lower Court’s judgment or quash the decision of the lower Court. If it rejects the appeal against the lower Court’s judgment, this judgment becomes final. If it quashes the judgment of the lower Court, it merely set aside the lower Court’s judgment and remit the whole case to a Court of Appeals to be reheard de novo. If the Court of Appeals confirms the judgment rendered by the Cour de cassation, this judgment is final. If it does not confirm the judgment rendered by the Cour of cassation then the Assemblée Plénière of the Cour de cassation re-judges the case and remits the case to another Court of Appeals, which must confirm the judgment of the Assemblée Plénière.
There are no juries in civil and commercial proceedings. Civil cases are tried by professional judges. Commercial cases are judged by non-professional judges, who are traders elected by their peers.
RULES OF PROCEDURE BEFORE FRENCH CIVIL AND COMMERCIAL COURTS
Before the Tribunal de grande instance (civil Court of first instance), proceedings commence by the plaintiff serving the defendant with a writ of summons or “Assignation” setting out the grounds of the plaintiff’s claim and summoning the defendant to appear in Court on a specific date. A list of evidentiary documents supporting the claim must be attached the writ. Counsel for the plaintiff then files an official copy of the served writ with the court. Proceedings are brought before commercial Courts either by the service of a writ of summons, or by a joint application filed by both parties. Also, the parties can appear before the commercial Court and present themselves their arguments orally to the Court, as representation by a counsel is not mandatory before these Courts.
THE PRE-TRIAL PHASE
Before civil Courts, a Judge (Juge de la Mise en Etat) is designated at the beginning of the proceedings to “attend to the fairness of the proceedings, specifically as regards the timely exchange of pleading briefs and the production of documents” (Article 763 § 2 of the Code civil Procedure). The length of the briefs is not limited. They must be motivated on law and facts. Additional claims and evidence may be filed after the first briefs. Once the Juge de la Mise en Etat deems the parties have
exchanged all relevant arguments in their briefs, he schedules a closing date after which no additional filings are authorized. After the closing of the proceedings, the Juge de la Mise en Etat sets the trial hearing date. Before commercial Courts, the procedure is oral. There is no Juge de la Mise en Etat and no closing date. But when the parties are represented by their
counsel, they file briefs as they do before the civil Courts, and the Court schedules an agenda for the filing of the briefs and the pleading hearing.
PRODUCTION OF EVIDENCE
In civil and commercial procedure, there is no general discovery as is the case under US rules of procedure.
Before the ribunal de grande instance, claims must be proven by written means, or by a document in writing evidencing at least partially the claim (Articles 1341 and 1347 f the Civil Code).
A party will merely disclose the documents he wishes to use to establish a particular fact in the case. But, if a party refers to a
piece of evidence in the brief, it “shall be obliged to produce it to the other party” (Article 132 of the civil Code of Procedure).
The Court before which a case is argued may refuse evidence which has been produced belatedly, i.e. if the receiving party has not had a “reasonable” amount of time to review the evidence thus produced.
A party may request the production of specific evidence not mentioned by the other party in its briefs, detained by the other party or to any third party if such evidence could contain elements that could have an influence on the case and that if is relevant to the dispute.
If the requested party refuses to submit to such request, the requesting party can notify a request for production of evidence (sommation de communiquer) officially requesting the filing of the evidence and which will be included in the file of the Court. This request does not, however, suspend the course of the pre-trial phase.
If the requested party refuses to file the evidence requested, the requesting party may ask the Juge de la Mise en Etat or to the Court to enjoin the defaulting party to proceed to such production (Article 133 of the civil Code of Procedure).The Juge de la Mise en Etat or the Court has complete discretion whether to make the requested order, taking into account the usefulness of the document to the dispute and other issues such as professional privilege. A Court may impose civil penalties on a party failing to comply with such an order.
Surprisingly for US lawyers, there are no juries before civil and commercial Courts, there is no discovery and as a matter of principle the parties are free to disclose the documents they think useful to demonstrate the facts and the legal arguments contained in their briefs.
THE TRIAL HEARING
Trial civil and commercial hearings are not, unlike what is the case in the US legal system, lengthy a.airs lasting for several weeks. Generally counsel orally plead the case during approximately 30 minutes.
At pleading hearings, in principle, three professional magistrates hear the case. In practice, it may be that only one judge hears the case. However, any party is entitled to request that the case be heard by three judges and the Court must in such case accept this request.
During the trial hearing, the Court hears the pleadings: plaintiff’s counsel(s) speak(s) first, defendant’s counsel(s) always last. French civil or commercial trials include neither witness cross-examination, nor the reading of depositions, nor the hearing of expert witnesses, nor jury deliberations. Plaintiffs, defendants, experts and witnesses, if any, are not expected to take the witness stand and undergo detailed cross examination by the parties’ counsels. Lawyers may request that experts be heard, but this is not common practice. Even court-appointed masters do not appear before the civil Courts, being content with filing reports.
In civil procedure, only the written briefs bind the Court. Before commercial Courts, the parties can defend themselves and lead their case orally. When they are represented by their counsel, written briefs are filed.
At the end of the pleadings, trial counsel hand over to the Court a pleading file containing each party’s argumentation with
a copy of the briefs and evidence already filed and relevant case law. The Court then schedules a date at which the judgment will be rendered.
Once the Court renders its judgment, an official enforceable copy of the judgment is remitted to the prevailing party, who can then have it served on the other party by a process server or by diplomatic channels if the other party is domiciled in a foreign country.
The service date is the starting date of the one month period during which the parties can file an appeal with a two months extension if the party being served is domiciled outside France.
ABOUT THE AUTHOR
Brigitte Daille-Duclos is an attorney at the Paris office of the English law firm Fieldfisher LLP. She specializes in commercial
and industrial litigation, tort, contractual and product liability, and insurance. She represents US and French companies before the French Courts. She has been named as “Lawyer of the year 2014/2015” by “Best Lawyers® in the practice area of Healthcare Law. In 2016, she was notably ranked in Industrial Litigation by Leaders League and in Litigation by Legal 500.
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