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

Article 51 of the Code of Civil Procedure, which establishes the jurisdiction of the court seized in the event of incidental claims, distinguishes between whether the claim falls under the jurisdiction of the Judicial Court or another court. The Judicial Court hears all incidental claims that do not fall under the exclusive jurisdiction of another court (Art. 51, para. 1). In other words, it hears …

Incidental claims

All defenses, except those that raise an issue falling within the exclusive jurisdiction of another court, fall within the jurisdiction of the court seised, even if they require the interpretation of a contract (Art. 49, para. 1, Code of Civil Procedure). In other words, the court hearing the action is the court hearing the pleas in defense and has jurisdiction over procedural defenses, motions to dismiss, and defenses on the merits. However, it has no jurisdiction over preliminary questions that fall within the exclusive jurisdiction of another court. Thus, the Plenary Assembly of the Court of Cassation established the principle that any court seized of a claim within its jurisdiction must stay proceedings when it has to consider defenses falling under the exclusive jurisdiction of another court. The question must be serious and have a direct impact on the resolution of the dispute.

The preliminary question may, in domestic law, also concern constitutionality (Art. 61-1 of the Constitution), and be of a criminal or administrative nature . In principle, the initiation of public action does not require the suspension of the judgment of other actions brought before the civil court, regardless of their nature, even if the decision to be made in the criminal case is likely to have, directly or indirectly, an influence on the resolution of the civil trial (Art. 4, para. 3, Code of Criminal Procedure). According to the Court of Cassation, Article 4 of the Code of Criminal Procedure, as amended by Law No 2007-291 of 5 March 2007, only requires the civil court to stay proceedings, in the event of the initiation of public action, when it is seized of the civil action for compensation for the damage caused by the offense. In other cases, it assesses, in the exercise of its discretionary power, whether or not there is a need to pronounce a stay of proceedings .

Finally, in European law, a preliminary question on the interpretation of the treaties or the validity and interpretation of acts adopted by the institutions, bodies, or agencies of the European Union may, under Article 267 TFEU, be referred to the Court of Justice. The preliminary question posed by the national court suspends the procedure at the internal level. The question must be necessary and relevant. The Court of Justice may indeed refuse to rule on a preliminary question when it is manifestly clear that the interpretation of European law requested by the national court has no connection with the reality or the subject matter of the main dispute .

Article 49, para. 2, of the Code of Civil Procedure states that “when the resolution of a dispute depends on a question raising a serious difficulty and falling within the jurisdiction of the administrative court, the initially seized judicial court refers it to the competent administrative court pursuant to Title I of Book III of the Code of Administrative Justice. It stays the proceedings until the decision on the preliminary question.”

Cass. 1re civ., 20 September 2017, LawLex201700002004JBJ.

CJEC, Case C-143/99, Adria-Wien Pipeline GmbH, Judgment of  8 November, 2001,LawLex200500004865JBJ.

Article 51 of the Code of Civil Procedure, which establishes the jurisdiction of the court seized in the event of incidental claims, distinguishes between whether the claim falls under the jurisdiction of the Judicial Court or another court. The Judicial Court hears all incidental claims that do not fall under the exclusive jurisdiction of another court (Art. 51, para. 1). In other words, it hears counterclaims, additional claims, and interventions unless another court has exclusive jurisdiction . Conversely, other courts only hear incidental claims that fall within their subject-matter jurisdiction, unless otherwise provided (Art. 51, para. 2). Thus, courts of exception cannot hear incidental claims whose subject matter falls under the subject-matter jurisdiction of another court; for example, the Commercial Court cannot adjudicate an incidental claim against a person who is not a trader and has not performed any commercial actions .

Cass. 3e civ., 3 May 1978, LawLex202300000810JBJ, regarding the district court (tribunal d'instance), since merged with the regional court (tribunal de grande instance) into the Judicial Court (tribunal judiciaire).

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

1. Ordinary Law of Civil Procedure

97. Incidental claims

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Les notions juridiques connexes

97. Incidental claims

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Les décisions de justice citées dans ce paragraphe :

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