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

In all urgent cases, the president of the Commercial Court may, within the limits of the court's jurisdiction, order in interim proceedings any measures that do not encounter any serious challenge or that are justified by the existence of a dispute (Art. 872 CPC). To order the measures provided for by the text, the interim relief judge must not have to take a position on the existence of claimed r …

In all urgent cases, the president of the Commercial Court may, within the limits of the court's jurisdiction, order in interim proceedings any measures that do not encounter any serious challenge or that are justified by the existence of a dispute (Art. 872 CPC). To order the measures provided for by the text, the interim relief judge must not have to take a position on the existence of claimed rights that fall within the assessment of the judges called to hear the merits of the case . Nor can the judge rule on difficulties related to the enforcement of his own decisions . Thus, the interim relief judge cannot order a maritime cooperative, without resolving a serious challenge, within the meaning of Article 872, to transmit its opinion to the administrative authority on the transfer of fishing precedents of a vessel under penalty payment on the grounds that it was evident from the decree of 26 December 2006 that the cooperative was responsible for managing fishing rights, including the transmission of requests for transfer of fishing rights to the competent administrative authority, while the cooperative contested this attribution, arguing that the said decree stipulated that, upon the sale of a fishing vessel, only the minister in charge of maritime fisheries could, after the opinion of the quota monitoring commission, transfer the precedents from the producer to one or more producers designated within the framework of a transfer protocol proposed by the producers and producer organizations .

The powers of the president of the Commercial Court are identical to those of the president of the Judicial Court (Art. 834 and 835 CPC). Thus, within the same limits, and even in the presence of a serious dispute, he may order interim protective measures or restoration measures as necessary, either to prevent imminent damage or to stop a manifestly unlawful disturbance (Art. 873, para. 1, CPC). However, he must ensure that the measure ordered is not disproportionate . If the interim relief judge can, under this provision, sovereignly ascertain the existence of imminent damage to order, as a precautionary measure, the measures he deems necessary to prevent it , he must, however, set a definite term for the measure, so as not to exceed his powers . The Court of Cassation defines a manifestly unlawful disturbance as any disruption resulting from a material or legal fact that, directly or indirectly, constitutes an obvious violation of the rule of law . The interim relief judge may, in particular, prescribe, as a protective or restoration measure, the obligation to fulfill contractual obligations  or the continuation of the effects of a contract . When there is neither urgency, imminent damage nor manifestly unlawful disturbance (trouble manifestement illicite), in accordance with Articles 872 and 873 of the Code of Civil Procedure, there is no need to prescribe interim protective or restoration measures .

The Court of Cassation considered that the sudden termination of established commercial relations, by delisting all products of the brand within a six-month period , or causing serious supply issues to a client suddenly deprived of a strategic supplier during a period of high activity , or the refusal by a supplier to disclose the conditions for granting discounts and rebates  constitutes a manifestly unlawful disturbance. However, in the absence of imminent damage or a manifestly unlawful disturbance, within the meaning of Article 873, para. 1, or a dispute, within the meaning of Article 872, there is no reason to order the continuation of commercial relations in interim proceedings when the Commercial Court has, by a judgment on the merits, deemed the termination justified . Similarly, the judge, ruling in interim proceedings, under Article L. 442-4 of the Commercial Code, can only order the cessation of abusive practices or any other provisional measure provided for by this text, if necessary under penalty, if the conditions set out in Articles 872 or 873 of the Code of Civil Procedure are met .

On the other hand, a manifestly unlawful disturbance does not include the refusal to sell when the commercial relations between the parties are such as to cast doubt on whether the buyer's requests were made in good faith , the mere copying of a competing product that is not protected by any proprietary right, which is not in itself an act of unfair competition , or the information, not alleged to be false, given in measured terms to the consumer about the objective properties they can expect from a product, even if intended to remedy the consequences of using another, non-competing product .

Furthermore, the Court of Cassation has held, in matters of commercial advertising, that a promotional message indicating that a certain amount would be donated to a charitable organization for each product purchased is not unlawful, as it is not claimed that this indication is misleading, even if supported by significant advertising, so that this time-limited advertising message cannot be considered an act of unfair competition sufficiently characterized to constitute a manifestly unlawful disturbance . Similarly, the judge in summary proceedings cannot prohibit advertising that merely compares the prices at which identical products are sold, under the same conditions, by different merchants, thus contributing to ensuring the transparency of a competitive market . However, the author of comparative advertising must, by way of summary proceedings, prove the accuracy of their claims, failing which their advertising may be prohibited, thereby constituting disparagement .

In distribution law, the commercialization by an unauthorized third party of products covered by a manifestly lawful selective distribution network constitutes a manifestly unlawful disturbance , as does the act of a company sending a letter to the head of an automotive distribution group, a client of its competitor, mentioning a conviction of the latter for unfair competition while knowingly altering the basis of the pronounced conviction, at a time when the group is likely to change suppliers. This deliberate distortion of the court decision is further accompanied by a vague but threatening formulation, “the impact and consequences of which we leave you to assess,” thus characterizing an act of disparagement, even if followed by the sending of a corrective to the same recipient . However, a distributor who sold spare parts to an out-of-network reseller, in violation of the stipulations of their contract, which is automatically terminated, cannot invoke imminent harm or a manifestly unlawful disturbance resulting from the application of the termination clause to attempt to obtain the resumption, even temporarily, of the terminated contract .

In the case of a first demand guarantee, the Court of Cassation specified that the interim relief judge cannot order the restitution of an amount to the principal who has been deprived of it following the payment of the guarantee, except in cases of fraud or manifest abuse. The guarantor remains obliged to pay the amount of the counter-guarantee on first demand, even after the interim relief judge has been seized . When faced with a request for the execution of a first demand guarantee contract, the interim relief judge can only either suspend the payment of the guarantee due to fraud or refuse the suspension without being able to attach conditions to this decision, such as making the payment contingent upon the issuance of a bank guarantee of the same amount .

In company law, the annulment of the resolutions of a company's general meeting, which is neither a protective measure nor a restorative measure, does not fall within the powers of the interim relief judge. Therefore, even to put an end to a manifestly unlawful disturbance, the judge cannot annul the resolutions of a meeting but can only suspend their effects . However, in the presence of facts attributed to a company's manager that could cause irreparable harm to the company's interests and result in the paralysis of its administration, a provisional administrator may be appointed in interim relief in view of the threat to the company, with the urgency of this appointment being established .

In matters of collective proceedings, the interim relief judge has jurisdiction to hear an application aimed at enforcing the termination clause included in the commercial lease and the eviction of the lessee placed in judicial liquidation, which does not fall within the jurisdiction of the judicial commissioner since it concerns not the exercise of the option reserved for the administrator regarding the continuation or not of ongoing contracts, but its consequences , or the request of a lessor for the payment of rents due after the pronouncement of judicial reorganization . However, the jurisdiction of the interim relief judge does not extend to, but rather exclusively belongs to, the judicial commissioner, who is responsible for ensuring the swift progress of the procedure and the protection of the interests involved, the hearing of an application for the continuation of ongoing contracts , as well as any claim for movable property where it can be exercised . Finally, the Court of Cassation has specified that the dispute concerning the competition between the creditor and the guarantor exercising their personal recourse, given the stipulation of the guarantor's waiver whose interpretation presents a serious difficulty, itself presents a difficulty of the same nature, excluding the jurisdiction of the interim relief judge .

The president of the Commercial Court may also rule in interim proceedings, pursuant to a specific provision. Such is the case when appointing the representative responsible for convening a general meeting of a limited liability company in accordance with Article R. 223-20, para. 5, of the Commercial Code . Similarly, in matters of insolvency proceedings and in accordance with Article R. 237-10 of the same code, the liquidation of the company is ordered by the president of the Commercial Court, ruling in summary proceedings, at the request of the majority of partners in general partnerships, partners representing at least 5% of the capital in limited partnerships, limited liability companies, and joint-stock companies, or social creditors.

Article 873, para. 2, of the Code of Civil Procedure provides that in cases where the existence of the obligation is not seriously contestable, the president of the Commercial Court may grant an advance to the creditor or order the performance of the obligation even if it is an obligation to do. Thus, except in cases specifically provided by law, the commercial interim relief judge remains competent to grant an advance, even when the trial court is seized . The judge does not need to determine if the application is based on urgency , but must examine the circumstances of the dispute to assess whether the obligation claimed by the applicant is seriously contestable . The Court of Cassation has notably held that in the absence of an express stipulation, the existence of an arbitration clause applying without further specification to all disputes cannot, as long as the arbitral tribunal is not seized, prevent the interim relief judge from granting an advance to the creditor of an obligation that is not seriously contestable . In all cases, the applicant must prove the existence of the obligation, and the defendant must demonstrate that there is a serious dispute likely to defeat the application .

On the other hand, the interim relief judge cannot interpret the terms of disputed contracts at the risk of resolving a serious dispute and disregarding the provisions of Article 873, para. 2, of the Code of Civil Procedure . The Court of Cassation thus held that the issuer of a bearer bond cannot be exempted from its obligation to reimburse, in the absence of any regular enforcement, except in the case of a misappropriation of ownership of the disputed bond. The mere fact that the bearer does not act on their own behalf and refuses to provide the information required by Article L. 563-1 of the Monetary and Financial Code is insufficient to characterize such a risk and make the obligation seriously contestable .

At the request of one of the parties, and if urgency justifies it, Article 873-1 of the Code of Civil Procedure allows the president seized in summary proceedings to refer the case to a hearing for which he sets the date so that a decision on the merits can be made. In this case, he is required to ensure that the defendant has sufficient time to prepare their defense, with the order resulting in the court being seized. Seized in summary proceedings, he may also decide that the parties will be summoned to an amicable settlement hearing as provided for in Articles 774-1 to 774-4. This decision, recorded by a note in the file, constitutes a measure of judicial administration (Art. 873-2 CPC, created by Decree No 2024-673 of 3 July 2024, Art. 1, 4°, in force since 1 September 2024).

Finally, the interim proceedings before the president of the Commercial Court must comply with the provisions of Articles 484 to 492 of the Code of Civil Procedure relating to interim orders, common to all courts. Pursuant to Article 485, “the application is brought by way of a writ of summons to a hearing held for this purpose on the usual days and times for interim proceedings” (para. 1), with the interim judge being able to allow a summons at a specified time, even on public holidays or non-working days if the case requires urgency (para. 2). The judge must ensure that sufficient time has elapsed between the summons and the hearing for the summoned party to prepare their defense (Art. 486 CPC). When the interim application concerns an investigative measure carried out by a specialist or an expert measure, the defendant who has indicated, before the hearing, acquiescence to the application, is exempt from appearing. Nevertheless, the judge always has the discretion to order their presence, with the decision rendered under these conditions being adversarial (Art. 486-1 CPC). Furthermore, the judge may also refer the case in interim proceedings to the full bench of the court at a hearing for which they set the date (Art. 487 CPC). The interim order does not have the authority of res judicata on the merits and can only be modified or revoked in interim proceedings in the event of new circumstances (Art. 488 CPC). If necessary, the judge may order that the execution of the interim order takes place solely on the basis of the minute (Art. 489 CPC). According to Article 490, the interim order may be appealed, unless it is issued by the first president of the Court of Appeal or if it was rendered as a final decision due to the amount or subject-matter of the application (para. 1), with the order rendered as a final decision by default being subject to opposition (para. 2). The time limit for appealing or opposing is fifteen days (para. 3). Finally, the interim judge who attaches a penalty payment to their decision may reserve its liquidation and rules on the costs (Art. 491 CPC).

Cass. com., 6 March 1985, LawLex202400009866JBJ, which approves the appellate judges for rejecting the claim of a company requesting the resumption of deliveries of products subject to a selective distribution contract on the grounds that the company having changed the place of sale of these products, the dispute with the seller concerned the merits of the case.

Cass. com., 21 January 1992, LawLex202300008535JBJ.

Cass. com., 10 November 2009, LawLex200900003320JBJ.

Cass. 1re civ., 24 November 2021, LawLex202100006018JBJ.

Cass. com., 27 February 1990, LawLex200200000110JBJ.

Cass. com., 17 September 2013, LawLex201300001374JBJ.

Cass. com., 27 June 1989, LawLex200200000052JBJ; 17 July 1990, LawLex200200000429JBJ. See also CA Paris, 20 October 2022, LawLex202200008799JBJ.

Cass. com., 9 May 1990, LawLex202400009868JBJ.

Cass. com., 27 September 2017, LawLex201700001573JBJ.

Cass. com., 15 January 2002, LawLex200200000568JBJ.

Cass. com., 30 June 1998, LawLex200300003135JBJ.

Cass. com., 22 July 1986, LawLex200300002642JBJ.

Cass. com., 17 May 2017, LawLex202400000248JBJ.

Cass. com., 18 May 1993, LawLex200200001642JBJ.

Paris, 25 March 2014, LawLex201400001777JBJ.

Cass. com., 13 March 2019, LawLex201900000340JBJ.

Cass. com., 4 December 2019, LawLex201900001496JBJ.

Cass. com., 7 June 1994, LawLex202400009870JBJ.

Cass. com., 6 November 1990, LawLex202400009869JBJ.

Cass. com., 13 January 2021, LawLex202200009448JBJ.

Cass. com., 17 October 1989, LawLex202300014745JBJ, which approves the decision of the appellate judges who, after noting that the embezzlements attributed to the manager were partly confirmed, stated that it was not possible to maintain the management of the company in the hands of a manager seriously accused of not having conducted it in a normal manner and who had lost the trust of the partner holding half of the shares.

Cass. com., 25 January 1994, LawLex202400009871JBJ.

Cass. com., 9 April 1991, LawLex202400009872JBJ.

Cass. 1re civ., 7 November 2000, LawLex202300010718JBJ; Cass. com., 4 February 2014, LawLex201400000227JBJ, according to which the interim relief judge must limit the general measure prohibiting the distribution, marketing, and promotion of a perfume in France to products and advertisements with characteristics deemed parasitic, and order the removal from the market, at the expense of the infringer, of all products and commercial or advertising documents reproducing or referring to these products.

Cass. com., 8 December 1987, LawLex202100005151JBJ.

Cass. com., 9 July 1991, LawLex200500006974JBJ: if it has not been directly submitted to the court handling insolvency proceedings, which can also act ex officio or be seized at the request of a party when the judicial commissioner has not ruled within a reasonable time, the claim for recovery of movable property, in cases where it can be exercised, falls under the exclusive jurisdiction of the judicial commissioner, and the interim relief judge is, therefore, not competent to hear it.

Cass. com., 23 June 1998, LawLex202100001509JBJ.

Cass. com., 6 February 2019, LawLex202200006613JBJ, which states that the president of the Commercial Court appoints the representative responsible for convening a general meeting at the request of a partner by an interim order.

Cass. com., 11 May 1993, LawLex202300002106JBJ.

Cass. com., 7 March 1995, LawLex202400009876JBJ.

Cass. 2e civ., 10 January 2008, LawLex202400009877JBJ; 13 March 2008, LawLex202400009878JBJ.

Cass. 2e civ., 20 March 1989, LawLex202400000637JBJ.

Cass. com., 22 November 1994, LawLex202400009875JBJ, which quashes the appeal judgment that holds, to dismiss the claim for payment of an advance, that the presumption established by Article 116, para. 4, of the Commercial Code, according to which acceptance implies the provision, does not exclude the possibility of contrary evidence, and that the claimant does not demonstrate that the defendant's obligation is not seriously contestable.

Cass. 1re civ., 4 July 2006, LawLex202300003532JBJ, which quashes the appeal judgment stating, to uphold the application for an advance, that the clause whereby the pledge guarantees “any sum due” must be interpreted in light of the stipulations of the “security deposit pledge agreement” conventions and that it is clear that the parties' intention was for the pledge to guarantee the payment of goods and not any claim for damages for alleged breaches of supply contracts other than the obligation to pay for goods; Cass. com., 23 September 2014, LawLex202400009874JBJ, which quashes the appeal judgment holding, to uphold a provisional payment application for the amount of a commission, that if the contract signed between the parties provides that it replaces a previously concluded contract, it stipulates that this is only for the payment of the commission calculated on the advance provided for in the previous contract.

Cass. com., 26 February 1991, LawLex202200003500JBJ, holds that the courts ruling in interim proceedings merely exercise the powers conferred by Article 873, para. 1, of the Code of Civil Procedure when they order, as a protective measure, the actions they deem necessary to prevent the imminent damage they observe.

Cass. com., 21 January 2004, LawLex202300005849JBJ.

Cass. 1re civ., 7 November 2000, LawLex202300010718JBJ.

Cass. com., 2 September 2020, LawLex202100000116JBJ. See also CA Paris, 20 October 2022, LawLex202200008799JBJ.

Cass. 1re civ., 15 June 2004, LawLex202400009867JBJ: in this case, it mattered little that the company had initiated legal action challenging the validity of its commitment, as it was required to comply with the principle that the contract concluded must be performed by each party until its validity has been ruled upon by the competent trial courts, and that no one may take the law into their own hands.

Cass. 1re civ., 7 November 2000, LawLex202300010718JBJ, cited above; 24 November 2021, LawLex202100006018JBJ.

Cass. com., 27 March 1990, LawLex202400009873JBJ; 17 September 2013, LawLex201300001374JBJ.

2. Proceedings before the Judicial Court and the Commercial Court

107. Interim orders

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Les décisions de justice citées dans ce paragraphe :

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107. Interim orders

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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