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

Since the entry into force of Decree No 2019-1333 of 11 December 2019 , which amended Article 853 of the Code of Civil Procedure, “the parties are, unless otherwise provided, required to instruct counsel before the Commercial Court” (Art. 853, para. 1, CPC), this instruction of counsel now constituting an election of domicile (Art. 853, para. 2, CPC) . While the provisions of Articles 5 and 5-1 of …

Instruction of counsel

Since the entry into force of Decree No 2019-1333 of 11 December 2019 , which amended Article 853 of the Code of Civil Procedure, “the parties are, unless otherwise provided, required to instruct counsel before the Commercial Court” (Art. 853, para. 1, CPC), this instruction of counsel now constituting an election of domicile (Art. 853, para. 2, CPC) . While the provisions of Articles 5 and 5-1 of Law No 71-1130 of 31 December 1971  allow a litigant to be represented before the Court of Appeal by the same legal representative as before the Judicial Court, where the rules of territorially limited mandatory representation apply, these rules do not apply before the Commercial Court, where the parties may be represented by any lawyer .

There are exceptions to this principle. Indeed, Article 853, paragraph 3, of the Code of Civil Procedure states that “the parties are exempt from the obligation to instruct counsel in cases provided for by law or regulation, when the claim involves an amount less than or equal to 10,000 euros, within the framework of procedures established by Book VI of the Commercial Code or for disputes relating to the maintenance of the trade and companies register.” The Conseil d’Etat intervened to affirm that these provisions, regardless of their subsequent amendment by Article 1, 19° of Decree No 2020-1452 of 27 November 2020 , comply with the objective of precision of the norm and do not infringe the right of access to a court . The text specifies that the amount of the claim is assessed in accordance with the provisions of Articles 35 to 37 of the Code of Civil Procedure.

In these various exceptional cases, the parties have the option to be assisted or represented before the Commercial Court by any person of their choice (Art. 853, para. 4, CPC), provided that the representative, if not a lawyer, must justify a special power of attorney (Art. 853, para. 5, CPC). This rule already existed under the regime prior to the entry into force of Decree No 2019-1333 of 11 December 2019 . The fact that the holder of the special power of attorney is an employee of the legal protection insurer representing the claimant has no impact on the validity of the power . If the legal representative of a company has the power to initiate legal proceedings on behalf of the company, they also have the option, before the court where the parties represent themselves, to grant any person of their choice a special power of attorney for the purpose of representing the company in court . This power, to be special, must, however, be given for a specific proceeding, specify the court seized, as well as the subject of the claim, and mention the opposing party . The lack of capacity or power of a person representing a party in court constitutes a substantive irregularity affecting the validity of the acts performed by them (Art. 117 CPC). The provisions granting parties the option to be assisted or represented by any person of their choice before a court cannot have the effect, unless expressly provided otherwise, of derogating from the principle that only lawyers can habitually perform these tasks . The Criminal Chamber of the Court of Cassation considers that anyone who, without being a lawyer, habitually engages in an independent activity (activité libérale) of assisting and representing parties before the Commercial Courts, commits the offense of illegal practice of the legal profession as provided by Article 72 of Law No 71-1130 of 31 December 1971 . This offense is punishable by a fine of 4,500 euros and, in case of recurrence, a fine of 9,000 euros and imprisonment for six months or only one of these two penalties (Art. 72 L. 71-1130 of 31 December 1971).

Finally, Decree No 2021-1322 of 11 October 2021 , which came into force on 1 November 2021, added an exception by incorporating a final paragraph to Article 853 of the Code of Civil Procedure, stating that “the State, regions, departments, municipalities, and their public establishments may be assisted or represented by a civil servant or an agent of their administration.” The Court of Cassation issued an opinion that this ability for the entities concerned to be represented or assisted by a civil servant or an agent of their administration, autonomous in its implementation, is not limited to matters where the parties are exempt from instructing counsel, so it also applies when representation by counsel is, in principle, mandatory, unless a specific provision presents an exceptional character . In another opinion, it considers that when these entities are not represented by a person with the status of counsel, electronic communication is impossible, so all necessary procedural acts must be served by extrajudicial act .

Decree No 2019-1333 of 11 December 2019 reforming civil procedure, OJ 0288 of 12 December 2019.

Under the previous regime, applicable before the entry into force of Decree No 2019-1333 of 11 December 2019, the Court of Cassation considered that the instruction of counsel to defend did not constitute, before the Commercial Court, an election of domicile, and that this election was not constituted by the mention of the lawyer's name on the writ of summons. See Cass. 2e civ., 19 November 2009, LawLex202400000519JBJ.

Cass. 1re civ., 7 April 1999, LawLex202300007682JBJ, according to which an activity that involves regularly appearing before courts to initiate and pursue actions for the judicial recovery of others' claims constitutes, with respect to lawyers, a manifestly unlawful disturbance; 21 January 2003, LawLex202300007683JBJ: in this case, within the framework of their professional activity of amicable debt collection on behalf of others, the applicants habitually and for remuneration engaged in an activity of assisting and representing parties before the Commercial Court, which must be prohibited.

Cass. crim., 1 February 2000, LawLex202400000517JBJ.

Decree No 2021-1322 of 11 October 2021 relating to the order for payment procedure, decisions regarding disputes over lawyers' fees, and amending various provisions of civil procedure, OJ 0239 of 13 October 2021.

Cass. 2e civ., opinion, 18 February 2021, LawLex202200010364JBJ, issued prior to the entry into force of Decree No 2021-1322 of 11 October 2021 and concerning representation or assistance by a civil servant or agent before the enforcement judge.

Cass. civ., opinion, 1 December 2021, LawLex202400009564JBJ.

Law No 71-1130 of 31 December 1971 on the reform of certain judicial and legal professions.

Cass. 2e civ., 14 November 2024, LawLex202400009403JBJ. By analogy, see also Cass. 2e civ., advisory opinion, 6 May 2021, LawLex202400009563JBJ, concerning the procedure before the expropriation judge's court.

Decree No 2020-1452 of 27 November 2020 on various provisions relating in particular to civil procedure and the compensation procedure for victims of acts of terrorism and other offenses, OJ of 28 November 2020, Art. 1, 19°.

CE, 22 September 2022, LawLex202400009331JBJ, which considers that it follows from the provisions of Article 853, para. 3, of the Code of Civil Procedure that undetermined claims as well as incidental claims involving an amount exceeding 10,000 euro do not fall within the scenarios where an exemption from the obligation to instruct counsel before the Commercial Court is provided, and that it is unfounded to argue that such provisions are imprecise due to the lack of reference to such claims, or that they infringe the right of access to a court.

Cass. com., 14 March 2000, LawLex202400009565JBJ.

Cass. 2e civ., 5 September 2019, LawLex202400000518JBJ, which disapproves of the Commercial Court that, to declare the writ of summons null, noted that the mandate given to the legal protection insurance company was an ad litem mandate in view of the terms of the writ of summons, the special mandates, and the statements of its employee, that Article L. 127-1 of the Insurance Code did not derogate from Article 4 of Law No 71-1130 of 31 December 1971, and that it resulted in the ad litem mandate included in the initiating act being given in violation of the applicable law.

Cass. com., 9 May 1995, LawLex202300008932JBJ, which specifies that the managing director of a public limited company has the power to bring legal action on behalf of the company, just like the chairman of the board of directors.

CA Versailles, 16 January 2003, LawLex202400009566JBJ, which considers that an irrevocable mandate to exercise all rights held from a claim, including proceeding with all amicable or judicial recoveries, drafted in very general terms, constitutes a simple collection power of attorney and not a special power within the meaning of Article 853 of the Code of Civil Procedure.

2. Proceedings before the Judicial Court and the Commercial Court

99. Instruction of counsel

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

99. Instruction of counsel

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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