Introduction

Subject-matter jurisdiction

Territorial jurisdiction

Extensions of jurisdiction

Jurisdiction

Initiation of the proceedings

Instructing counsel

Submissions

Registry

Rules common to all procedures

Ordinary contentious procedure

Non-contentious proceedings

Single-judge procedure

Fixed-date procedure

Written procedure

Ordinary procedure

Interim relief proceedings

Expedited trial on the merits

Oral proceedings

Ex parte proceedings (sur requête)

Referral procedure by decision of the criminal court

Specific procedures

Proceedings before the Judicial Court

Initiation of proceedings

Proceedings

General procedure

Interim orders

Orders on ex parte application

Expedited proceedings on the merits

Powers of the President

Proceedings before the Commercial Court

Proceedings before the Judicial Court and the Commercial Court

2. Proceedings before the Judicial Court and the Commercial Court

Ex parte proceedings are imposed on the president of the Commercial Court in two scenarios. First, when circumstances require that they not be taken adversarially, he may order, on application, within the limits of the court's jurisdiction, any urgent measures (Art. 875 CPC) . In this case, he may, on application, at the request of any interested party, order an in futurum measure, pursuant to Art …

Orders on ex parte application (Ordonnances sur requête)

Ex parte proceedings are imposed on the president of the Commercial Court in two scenarios. First, when circumstances require that they not be taken adversarially, he may order, on application, within the limits of the court's jurisdiction, any urgent measures (Art. 875 CPC) . In this case, he may, on application, at the request of any interested party, order an in futurum measure, pursuant to Article 145 of the Code of Civil Procedure, if there is a legitimate reason to preserve or establish evidence of facts before any trial, on which the resolution of a dispute may depend. The Court of Cassation has generally upheld this solution by stating that the judge of applications may order an investigative measure before any trial as long as the substance of the dispute is likely to fall, even partially, within the jurisdiction of the court to which it belongs . Thus, when the facts of unfair competition attributed to the defendants are likely to fall within the substantive jurisdiction of the Commercial Court, the judge of applications of the latter is competent to order an investigative measure before any trial, even if some of the facts were committed by certain defendants in their capacity as employees . Under penalty of exceeding the provisions of Article 145 of the Code of Civil Procedure, the president of the Commercial Court ruling on application is, however, required to pronounce a measure circumscribed in its object and time, and limited to the search for information related to the alleged facts described in the application . Furthermore, the Court considers that the existence of an arbitration clause does not deprive the president of the Commercial Court of the power he holds under Article 875 .

Then, Article 874, para. 1, of the Code of Civil Procedure states that “the president of the Commercial Court is seized by application in the cases specified by law.” In such a case, “the parties are exempt from the obligation to instruct counsel in matters of stock pledge and pledge without dispossession” (Art. 874, para. 2, CPC). They may present their application themselves but also have the option to be assisted or represented by any person of their choice, the representative, if not a lawyer, must then provide a special power of attorney (Art. 874, paras. 3, 4, and 5, CPC). Thus, the Commercial Code provides that the president of the Commercial Court rules on application to appoint the agent responsible for convening a general meeting to proceed with the appointments of board seats (Art. R. 225-18, Commercial Code) or members of the supervisory board (Art. R. 225-44, Commercial Code) of a public limited company, which have become vacant due to resignation or death, to appoint a liquidator in the event of insolvency proceedings if the partners have not been able to appoint one (Art. R. 237-12, Commercial Code) or to set the liquidator's remuneration, at the request of the interested party, when it has not been determined by the decision appointing them (Art. R. 237-14, Commercial Code). In matters relating to the  transport of goods, difficulties related to the execution of a contract may lead to an expert assessment ordered under Article L. 133-4 of the Commercial Code, which constitutes an interim protective measure taken in the common interest of all those concerned with the condition of the goods and not a court summons . In this respect, experts are appointed by the president of the Commercial Court and by order made on application (Art. L. 133-4, para. 1, Commercial Code). The applicant is required, under their responsibility, to call to this expert assessment all parties likely to be implicated, and the experts must take an oath, without a hearing, before the judge who appointed them or before the judge of the Judicial Court where they proceed (Art. L. 133-4, para. 2, Commercial Code). However, in case of urgency, the judge seized of the application may waive the completion of all or part of the formalities provided for in Article L. 133-4, para. 2, with mention of this waiver in the order.

Finally, Article 876 of the Code of Civil Procedure states that “in case of urgency, the application may be submitted at the domicile of the president or at the place where he exercises his professional activity.” The president of the Commercial Court has powers identical to those of the president of the Judicial Court. They are defined in Articles 845 and 846 of the Code of Civil Procedure to which reference should be made.

The ex parte proceedings before the president of the Commercial Court must comply with the provisions of Articles 493 et seq. of the Code of Civil Procedure relating to orders on ex parte application in general. Pursuant to Article 494, the application must be submitted in duplicate, be reasoned, and include a precise indication of the documents relied upon (para. 1). If it is submitted during proceedings, it must indicate the court seized (para. 2) and, in case of urgency, may be submitted at the judge's residence (para. 3). Under Article 496, “if the application is not granted, an appeal may be lodged unless the order is issued by the first president of the Court of Appeal. The appeal period is fifteen days. The appeal is filed, instructed, and judged as in non-contentious matters” (para. 1) and “if the application is granted, any interested party may refer the matter to the judge who issued the order” (para. 2) and, therefore, to the president of the Judicial Court. Finally, according to Article 497, the president has the power to amend or retract his order, even if the trial court is seized of the case.

Cass. com., 26 January 1999, LawLex202400009914JBJ, which quashes the appeal judgment that upheld an order refusing the retraction of a previous order on ex parte application, on the grounds that the ex parte procedure used by a member of the supervisory board of a public limited company to obtain the register of minutes of board meetings, which took on an “adversarial nature” before the interim relief judge, is not objectionable in principle or form with regard to the application made, without investigating whether the measure requested required a derogation from the adversarial principle.

Cass. 2e civ., 20 March 2014, LawLex202200007837JBJ, which specifies that the jurisdiction conferred on the president of the Judicial Court to rule on an ex parte application cannot override that conferred on the president of the Commercial Court, by Article 875 of the Code of Civil Procedure, when the dispute, for the resolution and in the context of which the investigative measures were required, falls under the jurisdiction of the latter.

Cass. 2e civ., 7 June 2012, LawLex202300001616JBJ.

CA Versailles, 17 January 2019, LawLex201900000106JBJ: by issuing a measure that is neither limited in its subject nor in time, nor restricted to the search for information related to the acts of unfair competition described in the application and which concerned the entire activity of the company in question, but constitutes a general investigative measure, the president of the Commercial Court ruling on an ex parte application exceeded the provisions of Article 145 of the Code of Civil Procedure.

Cass. com., 10 March 1998, LawLex202400009913JBJ.

Cass. com., 5 April 2011, LawLex202200010483JBJ.

2. Proceedings before the Judicial Court and the Commercial Court

108. Orders on ex parte application (Ordonnances sur requête)

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

108. Orders on ex parte application (Ordonnances sur requête)

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise