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

Provisions relating to human rights and fundamental freedoms, such as the Universal Declaration of Human Rights, the European Convention on Human Rights, the Declaration of the Rights of Man and of the Citizen, or the International Covenant on Civil and Political Rights, proclaim the right to be judged by an impartial and independent tribunal, which constitutes a general principle of law. In ordin …

Recusal or dismissal for legitimate suspicion

Provisions relating to human rights and fundamental freedoms, such as the Universal Declaration of Human Rights, the European Convention on Human Rights, the Declaration of the Rights of Man and of the Citizen, or the International Covenant on Civil and Political Rights, proclaim the right to be judged by an impartial and independent tribunal, which constitutes a general principle of law. In ordinary civil procedure, two procedures are available to a litigant who suspects the judge's partiality: dismissal due to legitimate suspicion and recusal. Legitimate suspicion can be defined as “the suspicion of partiality towards the seized jurisdiction that allows the higher jurisdiction, at the request of a party, to remove the first and refer the case to another jurisdiction of the same nature, if the suspicion is well-founded” . Recusal constitutes “the act by which a litigant refuses to be judged by or in the presence of a judge or an arbitrator whose impartiality is contested” .

Dismissal due to legitimate suspicion concerns the jurisdiction, whereas disqualification challenges the judge personally. It may, subject to specific provisions, be requested (Art. 341 CPC and L. 111-6 COJ):

- if he or his spouse has a personal interest in the challenge;

- if he himself or his spouse is a creditor, debtor, presumptive heir, or donee of one of the parties;

- if he or his spouse is a relative or in-law of one of the parties or their spouse up to the fourth degree inclusive;

- if there has been or is a proceeding between him or his spouse and one of the parties or their spouse;

- if he has previously been involved in the case as a judge or as an arbitrator or if he has advised one of the parties ;

- if the judge or their spouse is responsible for managing the assets of one of the parties;

- if there is a relationship of subordination between the judge or their spouse and one of the parties or their spouse;

- if there is a well-known friendship or enmity between the court and one of the parties;

- if there is a conflict of interest, within the meaning of Article 7-1 of Ordinance No 58-1270 of 22 December 1958 on the organic law relating to the status of the judiciary.

Since the entry into force of Decree No 2017-892 , dismissal due to legitimate suspicion and disqualification are governed by common provisions set out in Articles 341 to 350 of the Code of Civil Procedure. These provisions, aimed at ensuring the impartiality of a court, do not apply to the Competition Authority, which is a non-judicial authority, even when it is called upon to impose a sanction of a punitive nature , or to the disqualification of the specialist, who is not a judge .

The court may initiate recusal. Indeed, Article 339 of the Code of Civil Procedure establishes the principle that a judge who suspects a cause for recusal in their person or believes in good conscience they should abstain must be replaced by another judge designated by the president of the court to which they belong . The right to recusal and dismissal for legitimate suspicion also primarily belongs to the parties , who may recuse a judge or request dismissal to another court for legitimate suspicion as soon as they become aware of the cause justifying this request, under penalty of inadmissibility, before the closure of proceedings (Art. 342 CPC) . According to the Plenary Assembly, a party that refrains from requesting the recusal of the judge before the closure of proceedings waives the possibility of requesting it and cannot invoke before the Court of Cassation a violation of Article 6, § 1 of the European Convention on Human Rights, as they did not use the opportunity to ensure compliance by recusing the judge under Article 342 of the Code of Civil Procedure . Except for actions before the Court of Cassation, dismissal for legitimate suspicion or recusal is proposed by the party themselves or their representative, with a special mandate. When the lawyer alone has the authority to represent the parties, the application is made by the latter (Art. 343 CPC). Article 344 sets the conditions for the application, which must be submitted to the first president of the court of appeal by an act delivered to the court of appeal's registry. If it concerns the first president of the court of appeal or the court of appeal as a whole, the application must be submitted to the first president of the Court of Cassation who, after the opinion of the public prosecutor at this court, decides without a hearing by an order (Art. 350 CPC). When the cause for the application is discovered at the hearing, it is made by a declaration recorded by the clerk in a report, which is sent without delay to the first president, with a copy to the file. An application for legitimate suspicion filed with the court of appeal's registry after the hearing during which the facts demonstrating the court's partiality occurred is inadmissible . When the recusal request concerns several judges, it must, under penalty of inadmissibility, be presented by a single act unless a cause for recusal is revealed subsequently (Art. 349 CPC).

The application must, pursuant to Article 344, para. 3, specify, on pain of inadmissibility, the grounds for disqualification or dismissal due to legitimate suspicion and be accompanied by supporting documents. It cannot be supplemented by subsequent submissions . The first president must, by any means, inform the president of the court subject to a request for dismissal due to legitimate suspicion or to which the judge whose disqualification is requested belongs, as well as the judge concerned, of the application he has received. These parties may, as the case may be, be invited to present observations (Art. 345 CPC) . The application does not divest either the judge or the court. However, the first president may, after consulting the public prosecutor, order a stay of any judicial decision until the decision on the application for disqualification or dismissal due to legitimate suspicion (Art. 345, para. 3, CPC).

The first president rules without a hearing within one month from the date of referral, after consulting the public prosecutor (Art. 346, para. 1, CPC). If the request is granted, the judge is replaced, or the case is referred to another formation of the initially seized court or to another court of the same nature (Art. 347, para. 1 and 2, CPC). In principle, the court to which the case is referred is seized by a declaration at the registry of that court (Art. 1042 CPC). In the absence of provisions deviating from this rule regarding requests for recusal or dismissal due to legitimate suspicion, the court to which the case is referred after cassation must be seized by a declaration made at the secretariat of that court by the most diligent party. Therefore, the court of the first president of the court of appeal seized by application and not by declaration filed at the registry of that court is not validly seized .

Finally, the order dismissing the application for recusal or dismissal due to legitimate suspicion may be subject to an appeal to the Court of Cassation within fifteen days of its notification by the court registry (Art. 346, para. 3, CPC). However, the decision by which the president of a court targeted by an application to replace the judge due to legitimate suspicion, who, after considering this application well-founded, assigns the case to another formation of the court, constitutes a measure of judicial administration that is not subject to appeal .

CORNU, Vocabulaire juridique, under “suspicion légitime”.

CORNU, Vocabulaire juridique under “récusation”.

Cass. 2e civ., 27 February 2020, LawLex202300010781JBJ.

Cass. 2e civ., 26 September 2019, LawLex202400003873JBJ.

Cass. 2e civ., 2 March 2023, LawLex202400003876JBJ, which specifies that the applicant in the challenge for bias procedure cannot effectively invoke before the Court of Cassation the absence of collection, by the first president of the court of appeal, of the observations of the judge targeted by the challenge for bias, as the alleged irregularity is not likely to cause him harm.

Cass. 2e civ., 1 July 2021, LawLex202300010780JBJ.

Cass. 2e civ., 1 February 2018, LawLex202300010779JBJ.

Cass. 2e civ., 2 May 2024, LawLex202400003874JBJ, which holds that the criticized wording of the reasoning of a full bench decision, which ruled, by preliminary judgment, on an incident of disclosure of exhibits argued before a reporting judge, deciding solely on the usefulness of the disclosure of exhibits, does not contain a conviction already formed on the merits of the case; 2 February 2023, LawLex202400003877JBJ, which considers that statements made by the president of a commercial court in the press about the lack of funding and cash flow leading the court to pronounce judicial liquidation do not constitute mere information already made public but an opinion likely to raise a reasonable doubt about his impartiality.

Decree No 2017-892 of 6 May 2017 on various measures for the modernization and simplification of civil procedure, OJ of 10 May 2017.

Cass. 2e civ., 30 September 2021, LawLex202100005459JBJ.

Cass. 2e civ., 5 May 1993, LawLex202300010764JBJ.

Article 345 of the Code of Civil Procedure specifies that when the judge abstains, the president of the court informs the first president.

Cass. 2e civ., 8 September 2005, LawLex202300009260JBJ.

See, in particular, Cass. 2e civ., 18 January 2024, LawLex202400003879JBJ, which upholds the admissibility of the application for referral filed on 1 March 2022 for a series of grievances, the most recent of which concerns an order issued on 23 February 2022.

Cass. ass. plén., 24 November 2000, LawLex202300010778JBJ: in this case, the proceedings took place before a full bench whose composition, in accordance with the order of the first president determining the distribution of judges in the various divisions, was inevitably known in advance by the party involved.  See also, reiterating this solution, Cass. 2e civ., 4 March 2021, LawLex202300014495JBJ.

1. Ordinary Law of Civil Procedure

234. Recusal or dismissal for legitimate suspicion

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234. Recusal or dismissal for legitimate suspicion

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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