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 parties may, to be represented in court, entrust an authorized person with a mandate conferring the power and duty to perform procedural acts on their behalf (Art. 411 CPC). The mandate entrusts the representative with the conduct of the proceedings in court on behalf and for the account of the principal and grants a general power to perform procedural acts throughout the proceedings, to ensur …

Mandate for representation or assistance

The defense constitutes a fundamental constitutional right for every person, whose effective exercise requires ensuring access for everyone, with the assistance of a defender, to the court responsible for ruling on their claim . Among the guiding principles of civil proceedings, Article 18 of the Code of Civil Procedure notably provides that parties are free to defend themselves but also to be represented. Article 19 of the same code establishes a principle of free choice of defender . However, the freedom of representation and assistance in court can only be exercised within the limits set by the texts, with Article 18 specifically reserving the cases in which representation is mandatory before certain courts.

Representation and assistance in court contribute to the proper administration of justice and the protection of the parties' interests in civil proceedings. Therefore, the Code includes provisions common to all courts regarding the holder of the mandate for representation and assistance in court (Art. 411 to 420 CPC). Thus, Article 411 of the Code of Civil Procedure distinguishes the mandate for representation in court, also known as the mandate ad litem, from the mission of assistance in court, governed by Article 412. However, the two concepts are linked since Article 413 states that “the mandate for representation entails a mission of assistance, unless otherwise provided or agreed.” Specific rules also apply to the various courts where representation is or is not mandatory.

Cass. ass. plén., 30 June 1995, LawLex202200005808JBJ.

Cass. 3e civ., 31 October 1989, LawLex202300007990JBJ: it is not for the courts to intervene in a party's free choice of counsel.

The parties may, to be represented in court, entrust an authorized person with a mandate conferring the power and duty to perform procedural acts on their behalf (Art. 411 CPC). The mandate entrusts the representative with the conduct of the proceedings in court on behalf and for the account of the principal and grants a general power to perform procedural acts throughout the proceedings, to ensure the proper administration of justice. If the representative does not need to justify a special power to notify the judgment to the principal , they must, to exercise remedies, justify a special power if they are not a lawyer .

The holder of the mandate for legal representation must be a person, either natural or legal, authorized by law (Art. 414 CPC) . A party is only allowed to be represented by one of the persons, natural or legal, authorized by law . The representative must prove that they have received a mandate or mission from the party they intend to represent or assist (Art. 416, para. 1, CPC). This obligation applies to the person intending to represent or assist a party, and not to a third party whom a person has mandated for the purpose of giving such a mandate to a lawyer . In the absence of a written document, the proof of the mandate cannot result from the circumstances of the case . However, the lawyer is exempt from justifying it (Art. 416, para. 1, CPC) . The same applies to the judicial commissioner in cases where they are authorized to represent or assist the parties within their jurisdiction (Art. 416, para. 2, CPC) . Outside these exceptions, the presumption of the very existence of the mandate for legal representation can be challenged by contrary evidence .

The person vested with a mandate of representation in court is deemed, with respect to the court and the opposing party, to have received special authority to make or accept a withdrawal, to acquiesce, to make, accept, or give offers, an admission, or consent (Art. 417 CPC) . According to the Court of Cassation, a judicial admission is the statement made in court by the party or their authorized representative. Vested with a mandate of representation in court, the lawyer is deemed, with respect to the court and the opposing party, to have received special authority to make an admission, even orally . While not required to produce special authority to acquiesce to the opposing party's claim under Article 417, the lawyer must, in their dealings with their client, be able to justify that the mandate received indeed granted them this possibility . The authority granted to the representative lasts until the enforcement of the judgment. The lawyer can therefore fulfill their obligations, without new authority, during this entire period. However, the enforcement of the judgment must take place less than a year after it has become res judicata (Art. 420, para. 1, CPC).

The mission of legal assistance entails, under Article 412 of the Code of Civil Procedure, a duty of advice for the holder of the mandate . Thus, the mission of legal assistance imposes on the lawyer the obligation to inform their client about the remedies available against decisions rendered against them . They must fulfill their duty of information in a complete and objective manner. However, while the legal assistant must fulfill their duty of information completely and objectively, they are ethically obliged to advise against pursuing a legal remedy that is doomed to fail or, even more so, is abusive. Therefore, they cannot be required to provide information that, according to the very findings of the contested judgment, would have had the sole purpose of allowing the client to engage in an abusive appeal for purely dilatory purposes . Furthermore, it is the responsibility of the representative to independently gather from the principal all the information and documents necessary to best defend the latter's interests .

The mandate may be revoked at the initiative of the principal or the agent. In the first scenario, “the party revoking their agent must immediately either appoint a replacement or inform the court and the opposing party of their intention to defend themselves if the law permits, failing which their opponent is entitled to continue the proceedings and obtain judgment by continuing to deal only with the revoked representative” (Art. 418 CPC). In the second scenario, “the representative who intends to terminate their mandate is only discharged after informing their principal, the court, and the opposing party of their intention” (Art. 419, para. 1, CPC) and “when representation is mandatory, the lawyer can only be discharged from their mandate of representation from the day they are replaced by a new representative appointed by the party or, failing that, appointed by the bar president or the president of the disciplinary chamber” (Art. 419, para. 2, CPC).

Cass. 2e civ., 27 February 1980, LawLex202300007989JBJ.

Cass. soc., 2 April 1992, LawLex202300007992JBJ: the representative of an employee holding a power limited to representing the latter before the labor court is not authorized to file an appeal; 21 September 2016, LawLex202200007889JBJ.

Cass. 1re civ., 3 February 1993, LawLex202300007806JBJ.

Cass. 1re civ., 9 May 1996, LawLex202300012161JBJ.

Cass. 1re civ., 9 May 1996, LawLex202300012161JBJ: a lawyer has, in any event, the duty to advise their client and cannot merely acknowledge the client's instructions and comply with them.

Cass. 1re civ., 2 February 1994, LawLex202300007906JBJ; 13 November 1997, LawLex202300007907JBJ.

Cass. 1re civ., 23 November 2004, LawLex202300000929JBJ.

Cass. 1re civ., 1 March 2005, LawLex202300007804JBJ.

Cass. 2e civ., 17 November 2005, LawLex202300007810JBJ.

Cass. 2e civ., 24 January 2008, LawLex202300007816JBJ.

Cass. 1re civ., 12 December 2018, LawLex202300008006JBJ.

Cass. com., 15 October 1991, LawLex202400003181JBJ.

Cass. 2e civ., 20 February 1991, LawLex202300008004JBJ; Cass. soc., 10 June 2015, LawLex202300007817JBJ.

Cass. 2e civ., 10 May 1995, LawLex202300004013JBJ, D. 1996, Somm. 136, obs. JULIEN; Justices 1996, 3, 370, obs. HERON: the judicial commissioner is exempt from justifying a mandate only when assisting or representing the parties before a court within their jurisdiction.

Cass. com., 19 October 1993, LawLex202300007991JBJ; Cass. 1re civ., 2 October 2013, LawLex202300007993JBJ.

Cass. 3e civ., 16 December 1992, LawLex202300008005JBJ: correspondence between lawyers, even “declassified” by the bar president, falls within the scope of Article 417 of the Code of Civil Procedure.

Representation is mandatory before ordinary law courts, which include the Judicial Courts and the Court of Appeal, as well as before the Commercial Court, an exceptional jurisdiction. Mandatory representation is imposed by the provisions of the Code of Civil Procedure, unless otherwise provided. In other words, in certain cases provided by law, the parties may be exempted from representation.

Thus, Article 760, para. 1, of the Code of Civil Procedure requires the parties to instruct counsel to defend before the Judicial Court. The mandate of representation can only be entrusted to a lawyer, who is obliged to comply with the rule of postulation  (Art. 5 L. 71-1130 of 31 Dec. 1971). Non-compliance with the provisions relating to the postulation of lawyers constitutes a substantive irregularity . The parties are required to instruct counsel to defend regardless of the amount involved in the claim (Art. 761, para. 2, CPC). Article 763 specifies that if the defendant is required to instruct counsel to defend within fifteen days from the writ of summons, when the writ is served fifteen days or less before the hearing date, they may instruct counsel to defend until the hearing. The instruction of counsel must be disclosed. Thus, as soon as they are instructed, the defendant's lawyer informs the claimant's lawyer. A copy of the act of instruction must be submitted to the court registry (Art. 764, para. 1, CPC). The instruction of counsel by the defendant or by any person who becomes a party during the proceedings is notified to the other parties by notification between lawyers (Art. 765, para. 1, CPC).

Article 853, para. 1, of the Code of Civil Procedure similarly requires that the parties instruct counsel before the Commercial Court. Representation or assistance may be provided, for the State, regions, departments, municipalities, and their establishments, by a civil servant or an agent of their administration (Art. 853, para. 5).

Finally, before the Court of Appeal, the parties are also required to instruct counsel (Art. 899, para. 1, CPC) . Before the entry into force of Decree No 2012-634 of 3 May 2012, they also had to instruct a solicitor . Now, only lawyers can represent the parties during the procedure with mandatory representation before the Court of Appeal. However, before the social chamber of the Court of Appeal, the parties can also be represented by a union representative. Otherwise, they remain required to instruct counsel (Art. R. 1461-1, para. 2, CPC).

Cass. 2e civ., 28 January 2016, LawLex202300007586JBJ: pursuant to Article 1, III of Law No 71-1130 of 31 December 1971 reforming certain judicial and legal professions, lawyers registered with the bar of one of the Judicial Courts of Paris, Bobigny, Créteil, and Nanterre may only file a notice of appeal before the Paris Court of Appeal in the case for which they have acted before one of the Judicial Courts of Paris, Bobigny, or Créteil that rendered the contested decision, or before the Versailles Court of Appeal in the case for which they have acted before the Judicial Court of Nanterre.

Cass. 2e civ., 5 May 2011, LawLex202300007693JBJ, 11 March 2015, LawLex202300000226JBJ: Article 2241 of the Civil Code, not distinguishing in its para. 2 between a formal defect and a substantive irregularity, provides that a writ of summons, even if affected by a substantive defect, has an interruptive effect.

The legislator occasionally provides exceptions to the procedure with mandatory representation before the Court of Appeal, particularly in matters of social security (Art. R. 142-11 CSS) or regarding decisions of the joint agricultural leases tribunal subject to appeal (Arts. 892, 895, and 898 CPC). In these cases, according to Article 931 of the Code of Civil Procedure, “the parties defend themselves” (para. 1) and “they have the option to be assisted or represented according to the rules applicable before the court from which the judgment originates” (para. 2). However, Article 931, paragraph 3, specifies that “the representative must, if not a lawyer, provide proof of a special power.”

Decree No 2012-634 of 3 May 2012 concerning the merger of the professions of lawyer and advocate at the Courts of Appeal, JO of 5 May 2012.

Requirement of legal representation

Before the Judicial Court, the parties are exempt from the requirement of legal representation:

- in matters within the jurisdiction of the judge for the protection of contentious matters (Art. 761, para. 1, 1°, CPC);

- in the matters listed in Articles R. 211-3-13 to R. 211-3-16, R. 211-3-18 to R. 211-3-21, R. 211-3-23 of the Code of Judicial Organization and in the matters listed in Table IV-II annexed to the Code of Judicial Organization (Art. 761, para. 1, 2°, Code of Civil Procedure);

- excluding matters within the exclusive jurisdiction of the Judicial Court, when the claim involves an amount less than or equal to 10,000 EUR or concerns an indeterminate claim originating from the performance of an obligation whose amount does not exceed 10,000 EUR (Art. 761, para. 1, 3°, CPC).

In these scenarios, the parties in a civil trial may defend themselves, be assisted or represented by a lawyer, their spouse, their partner, or the person with whom they have entered into a civil solidarity pact, their relatives or in-laws in the direct line, their relatives or in-laws in the collateral line up to the third degree inclusive, persons exclusively attached to their personal service or their undertaking (Art. 762, paras. 1 and 2, CPC). However, Article 762, paragraph 3, of the same code specifies that the representative, who is not a lawyer, must provide proof of a special power . The list of persons authorized to assist or represent the parties before the Judicial Court when representation is not mandatory is exhaustive. Thus, a judicial commissioner does not have standing to be the representative of a party before the Judicial Court .

Before the Commercial Court, Article 853, para. 3, exempts the parties from the obligation to instruct counsel to defend:

- in cases provided for by law or regulation,

- when the claim involves an amount less than or equal to EUR 10,000  or originates from the enforcement of an obligation whose amount does not exceed EUR 10,000;

- within the framework of the procedures established by Book VI of the Commercial Code;

- for disputes relating to the maintenance of the trade and companies register.

The parties are, in this case, free to defend themselves or to be assisted or represented. The legislator does not establish any list of persons authorized to represent the parties before the Commercial Court, although a representative who is not a lawyer must provide proof of a special power (Art. 853, para. 4, Code of Civil Procedure). The provisions that allow parties to be assisted or represented by any person of their choice before a court cannot, unless expressly stated otherwise, derogate from the exclusive competence of lawyers regarding the habitual exercise of a mission . This is the case in matters of debt recovery on behalf of others .

Finally, before the Labor Court, the principle established is the opposite of that for the Judicial Court or Commercial Court. The rule is that the parties defend themselves (Art. R. 1453-1, para. 1, Labor Code), but they have the option to be assisted or represented (Art. R. 1453-1, para. 2). Article R. 1453-2 provides an exhaustive list of persons authorized to assist or represent the parties:

- employees or employers belonging to the same sector of activity;

- the spouse, the partner bound by a civil partnership, or the cohabitant;

For employers, this list includes a member of the company or establishment who is empowered or authorized for this purpose, provided they can prove they have received a mandate or mission from the employer   (Art. R. 1453-2, para. 2, CPC). Thus, a father cannot represent his son at the labor tribunal hearing  . Similarly, an employee who is a member of an association cannot be considered a delegate of a trade union organization authorized to assist or represent a party before the labor court  . The same applies to a person who, under the guise of occasional employment contracts, only intervenes to represent the company in court  . If the representative is not a lawyer, they must provide proof of a special power of attorney. Before the conciliation and orientation office, this document must authorize them to settle on behalf of the principal and to participate in orientation measures (Art. R. 1453-2, para. 3, CPC).

Cass. 2e civ., 6 April 1995, LawLex202300007684JBJ.

Cass. 2e civ., 1 July 1981, LawLex202300013596JBJ: the judicial commissioner does not have standing to represent the parties.

Cass. 1re civ., 7 April 1999, LawLex202300007682JBJ.

Cass. 1re civ., 21 January 2003, LawLex202300007683JBJ.

Cass. soc., 5 March 1992, LawLex202300007686JBJ; 14 October 1997, LawLex202300007691JBJ.

Cass. soc., 11 May 1993, LawLex202300007688JBJ.

Cass. soc., 8 October 1996, LawLex202300007687JBJ.

Cass. soc., 12 April 1995, LawLex202300007689JBJ.

1. Ordinary Law of Civil Procedure

196. Mandate for representation or assistance

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Les notions juridiques connexes

196. Mandate for representation or assistance

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