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

The question can only be referred provided that the provision has not already been declared constitutional in the reasoning and the operative part of a decision by the Constitutional Council, unless there is a change in circumstances (Art. 23-2, 2°, Ord. 58-1067 of 7 November 1958). Changes that have occurred since the previous decision, in the applicable constitutional standards or in the circums …

Provision not previously declared compliant/Genuine substance to question

To be transmitted, the QPC must concern a provision applicable to the dispute or the procedure, or constituting the basis of the proceedings (Art. 23-2, 1°, Ord. 58-1067)  and challenge its compliance with the rights and freedoms guaranteed by the Constitution.

The rights referred to include not only those enshrined in the Constitution of 4 October 1958, but also those listed in the Preamble to the Declaration of the Rights of Man and of the Citizen of 26 August 1789, the Preamble to the Constitution of 27 October 1946, as well as the Fundamental Principles recognized by the laws of the Republic, and finally, the Charter for the Environment since 1 March 2005. The Constitutional Council has specified that while the constitutional objective of intelligibility and accessibility of the constitutional block requires the legislator to adopt sufficiently precise provisions and unequivocal formulas, its violation alone cannot be the subject of a priority preliminary ruling on the issue of constitutionality .

The requirement for a legislative provision refers to both “organic” and ordinary laws, as well as ordinances ratified by parliament. It may concern an article or a paragraph. Since the question must pertain to a specific provision, any question targeting all provisions of a law without identifying those specifically applicable to the dispute and confronting them with rights and freedoms guaranteed by the Constitution must be rejected . The provision must be legislative in nature. Thus, the Court of Cassation has declared inadmissible the question regarding the conformity to constitutional principles of provisions of the Code of Civil Procedure of a regulatory nature , which, under the guise of a legislative provision, challenges a regulatory provision , or which aims to assess the compatibility of a law with France's international and European commitments . Furthermore, texts intended to transpose European Union directives do not fall within the scope of priority preliminary rulings on the issue of constitutionality .

On the other hand, the effective scope conferred on a legislative provision by a consistent judicial interpretation  may be the subject of a priority preliminary ruling on the issue of constitutionality . According to the Council of State, the declaration of constitutionality of a legislative provision by a decision of the Constitutional Council does not preclude a priority preliminary ruling on the issue of constitutionality concerning the judicial interpretation of this provision adopted after the Council's decision . However, a question that merely challenges a judicial rule without specifying the legislative text whose scope, under this rule, would be likely to infringe a constitutional principle is inadmissible . According to the Court of Cassation, while it may concern the consistent judicial interpretation of a legislative provision, the QPC cannot, however, have as its object a method of assessment that the trial courts have the sovereign power to adopt  or the application of a judicial concept to a specific matter, such as the theory of appearance in real estate ownership .

Cons. constit., 30 March 2012, LawLex202300001414JBJ, which holds that the Council cannot call into question the decision by which the Council of State or the Court of Cassation has ruled, pursuant to Article 23-5 of the ordinance of 7 November 1958, that a provision was or was not applicable to the dispute or the procedure or constituted or did not constitute the basis of the proceedings; Cass. 1re civ., 5 July 2012, LawLex202300001409JBJ.

Cons. constit., 22 July 2010, LawLex202300001148JBJ.

Cass. 1re civ., 27 February 2013, LawLex202300001112JBJ.

Cass. 3e civ., 14 March 2013, LawLex202300001115JBJ.

Cass. 3e civ., 30 March 2017, LawLex202300001116JBJ.

Cass. soc., 25 November 2014, LawLex202300001122JBJ.

Cass. 2e civ., 17 September 2015, LawLex202300000976JBJ; Cons. constit., 23 September 2016, LawLex202300001149JBJ: claims asserting a violation of a constitutional principle by a regulatory act cannot give rise to a priority preliminary ruling on the issue of constitutionality.

Cass. 3e civ., 21 January 2013, LawLex202300000977JBJ.

Cass. crim., 18 November 2014, LawLex202300001537JBJ.

Cass. soc., 15 February 2011, LawLex202300001100JBJ.

The case law of the Constitutional Council is also the subject of abstracts drafted by the General Secretariat and listed in analytical tables: CC, Analytical Tables from 1 January 1958 to 30 June 2022.

Cons. constit., 6 October 2010, LawLex202300001132JBJ.

CE, 20 December 2018, LawLex202300001155JBJ.

Legislative provision applicable to the dispute or proceedings, or constituting the basis of the proceedings

The question can only be referred provided that the provision has not already been declared constitutional in the reasoning and the operative part of a decision by the Constitutional Council, unless there is a change in circumstances (Art. 23-2, 2°, Ord. 58-1067 of 7 November 1958). Changes that have occurred since the previous decision, in the applicable constitutional standards or in the circumstances, whether legal or factual, that affect the scope of the criticized legislative provision justify the re-examination of the contested provision. This is the case with a change in legal circumstances, particularly following a new decision by the Constitutional Council that revisits the constitutionality of a provision. If a decision by the Council of State or the Court of Cassation constitutes a change in circumstances justifying the re-examination of a legislative provision previously declared constitutional by the Council, this is not the case with a decision by the trial courts.

Furthermore, the question must not lack genuine substance (caractère sérieux), (Art. 23-2, 3°, Ord. 58-1067). To present a “serious character,” the QPC must be substantiated. This is the case when the provisions, which could give the court the power to control without any limit the harm in commercial relations, raise a question of compatibility with the major constitutional principles, namely, the freedom to conduct a business and contractual freedom .

Finally, under Article 126-5 of the Code of Civil Procedure, the court is not required to refer a priority preliminary ruling on the issue of constitutionality that challenges, on the same grounds, a legislative provision already before the Court of Cassation or the Constitutional Council. In this case, it stays the judgment on the merits until it is informed of the decision of the Court of Cassation or, if applicable, the Constitutional Council. The absence of referral of the question to the Constitutional Council is mandatory, even when the question is no longer pending before the Court of Cassation or when the Constitutional Council has already provided an answer .

See CA Paris, 10 May 2022, LawLex202200002404JBJ. See also, on the serious nature, Cass. com., 14 September 2010, LawLex202300001229JBJ; 28 September 2010, LawLex202300001230JBJ; Cass. 3e civ., 8 July 2011, LawLex202300001228JBJ LawLex202300000395JBJ.

CA Paris, 18 November 2011, LawLex202300000903JBJ; 17 December 2020, LawLex202000003792JBJ.

1. Ordinary Law of Civil Procedure

104. Provision not previously declared compliant/Genuine substance to question

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Les notions juridiques connexes

104. Provision not previously declared compliant/Genuine substance to question

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