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 decision based on Article 145 of the Code of Civil Procedure may be made upon application or in summary (interim) proceedings. According to Article 493 of the same code, an order on ex parte application is a provisional decision rendered without adversarial proceedings in cases where the applicant is justified in not summoning an opposing party. It is reasoned and enforceable upon the original …

Competence and enforcement

The decision based on Article 145 of the Code of Civil Procedure may be made upon application or in summary (interim) proceedings. According to Article 493 of the same code, an order on ex parte application is a provisional decision rendered without adversarial proceedings in cases where the applicant is justified in not summoning an opposing party. It is reasoned and enforceable upon the original order. A copy of the application and the order is left with the person against whom it is enforced (Art. 495 CPC). According to the Court of Cassation, this latter requirement applies only to the person who bears the enforcement of the measure , whether or not they are a potential defendant in the contemplated proceedings . Article 145 does not require that the person bearing the measure be the potential defendant in the future proceedings .

Investigative measures intended to preserve or establish, before any trial, evidence of facts on which the resolution of a dispute may depend can only be ordered on application when circumstances require that they not be adversarial (Art. 845 CPC) . The application must state the circumstances likely to justify proceeding non-adversarially with the investigative measure before any trial , with the court being required to determine whether the measure necessitates a derogation from the adversarial principle . Thus, the order may formally refer to the risk of evidence deterioration and the need for an element of surprise, provided it is justified by reference to the nature of the unfair competition facts expressly alleged in the application as justifying recourse to a non-adversarial procedure . However, the mere element of surprise is not sufficient to justify a derogation from the adversarial principle . The court, noting that the mission entrusted to the judicial commissioner is more likely to succeed if executed without the opposing party being informed, regarding the delivery of documents and the hearing of several people who may confer, characterizes the circumstances justifying a derogation from the adversarial principle . In any case, urgency is not a required condition for ordering investigative measures on application based on Article 145 of the Code of Civil Procedure .

Article 145 of the Code of Civil Procedure is intended to apply to all matters within the jurisdiction of civil courts on the merits . However, the judge in interim proceedings can only order an investigative measure prior to any trial if the subject matter of the dispute falls, at least in part, within the jurisdiction of the courts of the order to which he belongs . This limitation of jurisdiction also concerns exclusive subject-matter jurisdictions. Thus, when the requested measure of observation is inextricably linked to acts of trademark infringement, the competent court to hear the case on the merits, pursuant to Article L. 716-3 of the Intellectual Property Code, is the Judicial Court in Paris, and only the president of this court is competent to order an investigative measure based on Article 145 of the Code of Civil Procedure . Similarly, unless otherwise provided by law, the territorially competent judge to rule on an application based on Article 145 is the president of the court seized on the merits or the president of the court in whose jurisdiction the investigative measure in futurum is to be executed , even partially . The competence to hear applications for measures to be executed within the jurisdiction of several courts belongs to the president of the commercial court seized on the basis of Article 145 of the Code of Civil Procedure, provided that one of them is to be executed within his jurisdiction, without a territorial jurisdiction clause being enforceable against the applicant .

Finally, the judge in interim proceedings is not competent to order an investigative measure based on Article 145 of the Code of Civil Procedure when a legal provision stipulates that it can only be ordered during proceedings on the merits. This is notably the case with Article 16-11, paragraph 5, of the Civil Code, which states that a measure for identifying a person by their genetic fingerprints cannot be ordered in interim proceedings but only during proceedings on the merits relating to filiation  or special and mandatory public policy provisions relating to forgery proceedings .

Cass. 2e civ., 17 March 2016, LawLex202300003409JBJ, which holds that the person bearing the execution of the measure is an interested party to bring proceedings for the retraction of the order pronouncing this measure.

Cass. 2e civ., 4 June 2015, LawLex202300008178JBJ.

Cass. 1re civ., 4 May 1994, LawLex202300007442JBJ.

Cass. 1re civ., 10 January 1990, LawLex202300001560JBJ; Cass. 2e civ., 16 May 2002, LawLex202300001579JBJ; Cass. 1re civ., 13 March 2007, LawLex202300001565JBJ; 17 October 2007, LawLex202300001567JBJ

Cass. com., 20 November 2012, LawLex201200002356JBJ.

Cass. 2e civ., 18 November 1992, LawLex202300003669JBJ; 15 October 2015, LawLex202300001617JBJ.

Cass. com., 13 September 2017, No 16-12.196, LawLex202300001583JBJ; Cass. civ. 2e, 2 July 2020, No 19-20.012, LawLex202300003670JBJ. See contra: Cass. com., 14 February 2012, No 10-25.665, LawLex202300003673JBJ.

Cass. com., 16 February 2016, LawLex201600000369JBJ.

Cass. 1re civ., 8 June 2016, LawLex202300004224JBJ; 12 June 2018, LawLex202300004225JBJ.

Cass. 1re civ., 11 June 2003, LawLex202300001921JBJ.

Cass. 2e civ., 27 February 2014, LawLex202300002038JBJ.

Cass. 2e civ., 13 May 1987, LawLex202300001924JBJ; Cass. com., 19 December 2000, LawLex202300003405JBJ.

Cass. 2e civ., 19 March 2015, LawLex202300003410JBJ; 7 June 2012, No 11-20.934, LawLex202300003064JBJ; 5 June 2014, No 13-20.333, LawLex202300003275JBJ; 18 February 2016, LawLex202300012607JBJ; 10 June 2021, LawLex202300003305JBJ.

Cass. 2e civ., 13 May 1987, LawLex202300001924JBJ; 23 November 1994, LawLex202300003273JBJ; 30 April 2009, LawLex202300001619JBJ.

Cass. 2e civ., 23 June 2016, LawLex202300003413JBJ.

Cass. 2e civ., 17 March 2016, LawLex202300003409JBJ.

Cass. 2e civ., 15 January 2009, LawLex202300001925JBJ.

1. Ordinary Law of Civil Procedure

125. Competence and enforcement

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

125. Competence and enforcement

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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