Introduction

Role of the parties

Role of judge

Contentious matters

Concept

Powers of the judge

Principle of adversarial proceedings

Non-contentious matters

Underlying principles of civil proceedings

Right to bring civil action

Abuse of the right to bring proceedings

Type of action

Concept of action

Interest in bringing proceedings

Standing

Rules governing action

Legal action

Initial claim

Counterclaim

Additional claim

Intervention

Incidental claim

Interruption of limitation period

Application to file suit (demande en justice)

Defense on the merits

Procedural objections (exceptions de procédure)

Procedural bars to admissibility (fins de non-recevoir)

Defenses

Nature of claim

Amount of the claim

Jurisdiction ratione materiae

Principles

Exceptional territorial jurisdiction

Extension of jurisdiction

Territorial jurisdiction

Competent court

Formal requirements

Substantive requirements

Presentation of the QPC (Question prioritaire de constitutionnalité)

Referral to Court of Cassation

Referral to Constitutional Council

Referral of the QPC

Investigation procedure

Conduct of hearing

Decision of the Constitutional Council

Proceedings before Constitutional Council

Priority question of constitutionality (QPC)

Simplified case preparation procedure

Participative procedure for case preparation purposes

Extra-judicial case preparation

Recourse to technical expert

Agreements on extra-judicial case preparation (mise en état)

Disclosure of exhibits

Production of documents

Exhibits

Common provisions for investigations

Rules specific to each investigation

Investigative measures

Disputes concerning private deeds (actes sous seing privé)

Forgery procedure against authentic instruments

Challenges to documentary evidence

Oath sworn as decisive evidence

Oath tendered by way of supplementation

Judicial oath

Administration of evidence

Hearings

Deliberations

Judgment

Formation

Judgment after adversarial proceedings

Judgment by default or judgment after trial

Contentious or non-contentious judgment

Judgment on the merits or provisional ruling (avant dire droit)

Combined judgment

Provisional judgment

Judgment in fast track proceedings

Types

Joinder and severance of proceedings

Interruption of proceedings

Suspension of proceedings

Discontinuance of proceedings (extinction)

Procedural incidents

Plea of lack of jurisdiction

Recusal/Dismissal for legitimate suspicion

Challenging the judge's competence

General rules

Voluntary intervention

Compulsory intervention

Joinder in proceedings (intervention)

Existence of a judgment

Same subject matter, cause, and parties

Authority of res judicata

General conditions of enforcement

Provisional enforcement

Grace period

Enforcement of the judgment

Bearing of costs

Order to pay non-recoverable costs

Verification/Recovery

Claims/Disputes

Costs and expenses

Ordinary remedies

Extraordinary remedies

Remedies

Judgments

Calculation of time-limits

Acts of judicial commissioners

Service of documents

Ordinary notification

Notification between lawyers

International notification

Place of notification

Notification

Communication by electronic means

Procedural acts

1. Ordinary Law of Civil Procedure

Commercial courts are special courts: they are only competent for cases assigned to them by law. However, this exceptional nature is mitigated by the general nature of the jurisdiction granted to them. They are first-instance courts, composed of elected judges and a registrar, whose jurisdiction is determined by the Commercial Code. They are subject to provisions common to all courts (Art. L. 721- …

Commercial courts are special courts: they are only competent for cases assigned to them by law. However, this exceptional nature is mitigated by the general nature of the jurisdiction granted to them. They are first-instance courts, composed of elected judges and a registrar, whose jurisdiction is determined by the Commercial Code. They are subject to provisions common to all courts (Art. L. 721-1 Commercial Code). When there is no commercial court in the relevant district, its jurisdiction is exercised by the Judicial Court (Art. L. 721-2 Commercial Code).

The law aims to assign all disputes related to economic activity to the commercial courts. Thus, disputes between artisans have fallen under their jurisdiction since 1 January 2022, whereas they previously depended on the Judicial Court . Furthermore, Law No 2023-1059 of 20 November 2023 on the orientation and programming of the Ministry of Justice 2023-2027, establishes an experiment that will lead to renaming the commercial court as the court of economic activities, which will have broader jurisdiction, particularly in matters of insolvency proceedings.

Law No 2016-1547 of 18 November 2016, Art. 95 and 114.

Under  Article L. 721-3, paragraph 1, of the Commercial Code, commercial courts hear disputes relating to commitments between merchants, artisans, credit institutions, financing companies, or between each other (Art. L. 721-3, 1°, Commercial Code) , and those related to commercial companies (Art. L. 721-3, 2°, Commercial Code) , or commercial actions between all persons (Art. L. 721-3, 3°, Commercial Code). The Code refers to “commitments between traders, between credit institutions, between finance companies, or among them.” All these entities qualify as traders. Although the law does not state it, the commitment must relate to the exercise of commerce. Article L. 721-3 effectively limits the jurisdiction of commercial courts to disputes arising in relations between traders or concerning commercial actions or those related to commercial companies. The Court of Cassation interprets the text broadly and applies it to disputes related to commitments between traders, even if the dispute concerns a matter not expressly assigned to commercial courts , or to liability actions brought by commercial companies against their de facto directors , including when the manager of a limited liability company is not personally a trader, as long as the alleged acts of unfair competition are directly linked to the management of the company for which he is the legal representative . Similarly, if the transfer act is in principle a civil act, a dispute related to an assignment of claims opposing the parties to a share transfer, arising from the transfer of shares of a commercial company, falls under the jurisdiction of the commercial court , even if the parties do not qualify as traders . Article L. 721-3 also addresses disputes between all persons for commercial actions. The commercial nature of the act  is assessed at the date it was executed, and the fact that its author has since lost trader status is irrelevant . If a single legal act contains different stipulations, some civil in nature, others commercial, the Court of Cassation considers that no text grants jurisdiction to the commercial court to rule on a claim against a person who does not have trader status and has not performed a commercial action . However, the commercial nature of the act may justify bringing a non-trader before the commercial court. This is the case for a lessor, who, due to joint liability, is liable for the commercial debts of their tenant-manager . The same applies to an association that acts as an intermediary for the purchase or sale of real estate by permanently offering individuals a website aimed at facilitating real estate exchanges .

When the claimant is a non-trader, they have an option right that allows them to choose to bring proceedings before the civil court or the commercial court . Thus, an association acting against a company to stop the manifestly unlawful disturbance resulting from the company's failure to comply with its vigilance obligations can choose to act before the civil jurisdiction . An insurance company, despite the civil nature of its mandate, can claim the jurisdiction of the commercial court when the dispute involves two legal entities with trader status, in the course of their statutory activities .

Commercial courts also have jurisdiction, within the limits of their subject-matter jurisdiction, over applications made pursuant to Regulation No 861/2007 of 11 July 2007 establishing a European Small Claims Procedure (Art. L. 721-3-1 Commercial Code).

The rule set out in Article L. 721-3, para. 1, has some legal exceptions. First, para. 2 provides that the parties may, at the time of contracting, agree to submit their disputes to arbitration, with the arbitration clause not being enforceable against a guarantor whose guarantee of a commercial debt was not undertaken within the scope of their professional activity. Article L. 721-4 grants jurisdiction to the Commercial Court when promissory notes bear signatures of both traders and non-traders, but requires referral to the judicial court if the defendant requests it when the promissory notes bear only signatures of non-traders and are not related to commercial operations, trade, exchange, banking, or brokerage. Similarly, Article L. 721-5, para. 1, grants jurisdiction to civil courts for legal actions in which one of the parties is a company established in accordance with Law No 90-1258 of 31 December 1990 concerning the practice in corporate form of liberal professions subject to legislative or regulatory status or whose title is protected, as well as disputes arising between partners of such a company. Also not under the jurisdiction of the Commercial Courts are actions brought against an owner, farmer, or winemaker for the sale of produce from their own production, nor actions brought against a trader for payment of goods and merchandise purchased for their personal use (Art. L. 721-6 Commercial Code).

In all cases, the Court of Cassation considers that a claim that does not fall within the subject-matter jurisdiction of the Commercial Court, as defined by Article L. 721-3 of the Commercial Code, falls under the jurisdiction of the judicial court .

Cass. com., 10 March 1998, LawLex202200011245JBJ, on the commercial nature of the mandate linking a general agent to an insurance company with respect to legal entities having the status of trader in the course of their statutory activity; 7 April 2004, LawLex202200011244JBJ, on the commercial nature of the guarantee granted by a partner who does not manage the company, provided that the creditor proves a personal, financial, and decisive interest in acting as guarantor.

Cass. soc., 16 September 2008, LawLex202200005547JBJ, on the relations between the company and the employee who became a shareholder; 12 February 2008, LawLex202200011246JBJ.

Cass. com., 22 January 1991, LawLex200200005820JBJ. See also, Cass. soc., 8 March 2006, LawLex200700000156JBJ.

Cass. com., 14 February 2006, LawLex202200011241JBJ, on the commercial operating methods of the store by a manager.

Cass. com., 18 November 2020, LawLex202000003268JBJ, which considers that the jurisdiction of commercial courts can be upheld when the defendants are individuals who are neither traders nor de jure managers of a commercial company, provided that the allegations against them are directly related to the management of that company.

Cass. com., 15 December 2021, LawLex202200001377JBJ.

Cass. com., 10 March 1998, LawLex202200011245JBJ.

Cass. civ., 18 March 2013, LawLex202200011130JBJ.

Cass. com., 27 October 2009, LawLex202200011133JBJ.

Cass. com., 30 March 2022, LawLex202200011135JBJ; 14 November 2018, No 16-26.115, LawLex202200007592JBJ, regarding the liquidator acting, like the manager, in the corporate interest and conducting operations directly related to the management of the company; 20 February 2019, LawLex201900000260JBJ, who consider that jurisdiction cannot be attributed to the Judicial Court without determining if the alleged facts are directly related to the de facto management by the defendant of the company in question.

Cass. com., 7 April 1967, LawLex202300004395JBJ.

Cass. com., 12 February 2008, LawLex202200011246JBJ.

Cass. com., 6 January 2021, LawLex202200011243JBJ.

Cass. 2e civ., 30 March 2000, LawLex202200011240JBJ; Cass. com., 15 January 2008, LawLex202200011242JBJ.

Cass. com., 12 March 2013, LawLex202200011100JBJ.

Cass. 2e civ., 1 March 2018, LawLex202200006478JBJ.

Jurisdiction in commercial matters

The Commercial Code grants jurisdiction to the Commercial Court if the debtor engages in a commercial or artisanal activity, to hear the initiation of insolvency proceedings, whether it is a safeguard procedure (Art. L. 621-2 Commercial Code), reorganization (Art. L. 631-7 Commercial Code), or judicial liquidation (Art. L. 641-1 Commercial Code). The registration of a natural person presumes the status of a trader (Art. L. 123-7 Commercial Code). According to the Bordeaux Court of Appeal, the Commercial Court has jurisdiction to initiate a safeguard procedure against a single-member limited liability company (EURL), commercial by its form alone, without needing to characterize its commercial purpose . Conversely, the Judicial Court has sole jurisdiction to hear the initiation of insolvency proceedings when the debtor company pursues a strictly civil corporate purpose . Except in certain cases , the jurisdiction of the Commercial Court also extends to all actions arising from the insolvency proceedings or on which the latter exerts a legal influence (Art. R. 662-3 Commercial Code) .

CA Bordeaux, 15 December 2010, LawLex202100004390JBJ.

CA Paris, 23 September 2021, LawLex202100006028JBJ.

Cass. com., 13 April 2010, LawLex202100002111JBJ; 7 February 2012, LawLex202100003313JBJ; ; 12 July 2016, LawLex202100001569JBJ.

Cass. com., 17 November 2015, LawLex202100003444JBJ; 18 May 2017, LawLex202100002013JBJ.

Jurisdiction in bankruptcy proceedings

When the debtor, engaged in a commercial or artisanal activity, is an undertaking with 250 or more employees and a net turnover of at least EUR 20 million, or an undertaking with a net turnover of at least EUR 40 million, certain commercial courts are specifically designated to handle their safeguard, recovery, or judicial liquidation procedures (Art. L. 721-8, para. 1, 1°, a and b, Commercial Code) . When a company holds or controls another company, as defined in Articles L. 233-1 and L. 233-3, and the total number of employees of all the companies concerned is 250 or more and the net turnover of all these companies is at least 20 million euros, or when a company holds or controls another company, as defined in Articles L. 233-1 and L. 233-3, and the net turnover of all these companies is at least 40 million euros, the competent specialized Commercial Court is the one in whose jurisdiction the company is located (Art. L. 721-8, para. 1, 1°, c and d, Commercial Code). In both scenarios, the specialized court competent to handle the conciliation procedure provided for in Title I of Book VI of the Commercial Code, upon direct application by the debtor, at the request of the Public Prosecutor or by decision of the president of the Commercial Court, is the one in whose jurisdiction the company holding or controlling another company is located, as defined in Articles L. 233-1 and L. 233-3 of the same code (Art. L. 721-8, para. 1, 4°, and para. 2, Commercial Code).

However, the Court of Cassation considers that if specially designated Commercial Courts handle insolvency proceedings when the debtor meets certain criteria related to the size of the undertaking, a non-specifically designated Commercial Court may nevertheless handle these proceedings when the thresholds it sets are not met. The text then determines a rule for the allocation of jurisdiction among the courts called to handle the proceedings, the non-observance of which is sanctioned by a decision of lack of jurisdiction and not by a decision of inadmissibility .

Furthermore, certain commercial courts are specifically designated to handle insolvency proceedings within the meaning of Regulation No 2015/848 . Thus, the specialized commercial court competent to open the main insolvency proceedings against a debtor with an establishment in the territory of another Member State is the one within whose jurisdiction the debtor's center of main interests is located, and the one competent to open secondary insolvency proceedings or territorial insolvency proceedings within the meaning of Article 3 of the same text is the one within whose jurisdiction an establishment of the debtor is located (Art. L. 721-8, para. 1, 2°, and para. 3, Commercial Code). Similarly, commercial courts are specifically responsible for proceedings for which the international jurisdiction of the court arises from the presence within its jurisdiction of the debtor's main center of interests, when the debtor engages in a commercial or artisanal activity (Art. L. 721-8, para. 1, 3°, Commercial Code).

Finally, Article L. 420-7 of the Commercial Code provides that disputes relating to anti-competitive practices contained in Articles L. 420-1 to L. 420-5, as well as in Articles 101 and 102 TFEU, are assigned to civil or commercial courts whose seat and jurisdiction are determined by Articles R. 420-3 and R. 420-4, which list the competent commercial and judicial courts.

A decree, issued after consultation with the National Council of Commercial Courts, establishes the list of specialized commercial courts. This decree determines the jurisdiction of these courts, taking into account employment areas and economic activity areas (Art. L. 721-8, para. 4).

Cass. com., 17 November 2021, LawLex202100005896JBJ.

Regulation No 2015/848 of 20 May 2015, on insolvency proceedings, OJ EU 5 June 2015.

Specific jurisdiction of certain commercial courts

When interim protective measures concerning movable and immovable property aim at preserving a claim under the jurisdiction of the Commercial Court and are requested before any proceedings, the president of the Commercial Court may have concurrent jurisdiction with the enforcement judge (Art. L. 721-7, 1°, Commercial Code). The same applies when these measures concern ships (Art. L. 721-7, 2°, Commercial Code), aircraft (Art. L. 721-7, 3°, Commercial Code), or inland navigation vessels with a tonnage equal to or greater than twenty tons (Art. L. 721-7, 4°, Commercial Code).

The president of the Commercial Court may also exercise the powers of a judge in interim proceedings, within the limits of the jurisdiction of the Commercial Court (Art. 872 to 873-1 CPC) and applications in cases specified by law (Art. 874 to 876-1). Within the same limits of his subject-matter jurisdiction, he may also hear domestic payment orders (Art. 1406 CPC) and European payment orders (Art. L. 722-3-1 Commercial Code).

In company law, certain powers are also granted to the president of the Commercial Court, particularly for the appointment of an expert to determine the value of a partner's shares in the event of their transfer or repurchase by the company (Art. 1843-4 Civil Code), in arbitration matters in case of difficulty regarding the competence of the arbitral tribunal (Art. 1459 Civil Code), or in commercial matters, for the distribution of funds outside any enforcement procedure (Art. 1281-12 Code of Civil Procedure).

Finally, in the context of preventing difficulties for undertakings, if the debtor engages in a commercial or artisanal activity , the president of the Commercial Court may appoint an ad hoc representative or be aware of the conciliation procedure (Art. L. 611-3 and L. 611-4 Commercial Code). The CA Rennes considers that when conciliation is initiated for a commercial company by the president of the Commercial Court, it cannot be extended to a civil company within the same group, which falls under the jurisdiction of the president of the judicial court .

Otherwise, jurisdiction reverts to the judicial court.

CA Rennes, com. 3e, 18 October 2011, No 11/02954, LawLex202100003598JBJ.

1. Ordinary Law of Civil Procedure

75. Concept

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

75. Concept

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise