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

The writ of summons before the Commercial Court is issued for a specific day, in other words, “on a fixed date.” More precisely, Article 856 of the Code of Civil Procedure provides that “the summons must be served at least fifteen days before the date of the hearing.” Failure to comply with this provision constitutes a formal defect resulting in the invalidity of the summons , which must be raised …

Time-limits

The writ of summons before the Commercial Court is issued for a specific day, in other words, “on a fixed date.” More precisely, Article 856 of the Code of Civil Procedure provides that “the summons must be served at least fifteen days before the date of the hearing.” Failure to comply with this provision constitutes a formal defect resulting in the invalidity of the summons , which must be raised before any defense on the merits  and requires proof of prejudice by the party invoking it . The Mixed Chamber of the Court of Cassation considers that a summons to appear before the Commercial Court, which specifies a date corresponding to a public holiday when the court does not sit, consitute merely a clerical error . The same applies to a summons to appear on a date when the court does not hold a hearing .

Pursuant to Article 857, para. 1, of the Code of Civil Procedure, “the court is seized, at the initiative of either party, by the filing with the court registry of a copy of the writ of summons.” This filing must take place no later than eight days before the date of the hearing, under penalty of the lapse of the summons, which is recorded ex officio by order, as the case may be, of the president or the judge responsible for preparing the case, or, failing that, at the request of a party (Art. 857, para. 2, CPC) . The writ of summons, duly served, pursuant to Article 857, constitutes a court action that interrupts the limitation period of the action . In the absence of filing a copy of the writ of summons with the registry of the commercial court, the court is not seized, nor is the proceeding initiated .

Finally, Article 858, para. 1, of the Code of Civil Procedure specifies that “in case of urgency, the time limits for appearance and service of the writ of summons may be reduced by authorization of the president of the court.” Furthermore, in maritime and air matters, the writ of summons may be served, even immediately (d’heure à heure), without the president's authorization, when there are parties not domiciled or if it concerns urgent and provisional matters (Art. 858, para. 2, CPC).

Cass. 2e civ., 19 November 2009, LawLex202400000226JBJ: regardless of the severity of the alleged irregularity, only those substantive irregularities exhaustively listed in Article 117 of the Code of Civil Procedure affect the validity of a procedural act, independently of any harm they may have caused, which is not the case for the exception of invalidity of the writ of summons, served at least fifteen days before the hearing date, in violation of Article 856 of the Code of Civil Procedure; 25 September 2014, LawLex202400009824JBJ, which specifies that this formal irregularity can only lead to the invalidity of the writ of summons if proven harm is demonstrated. – Conversely, See Cass. 2e civ., 12 June 2003, LawLex202400009823JBJ, which indicates that the irregularity invoked, consisting of the service of a writ of summons in disregard of the time limit provided by Article 856 of the Code of Civil Procedure, if null and not validly seizing the court, does not constitute a mere formal defect.

Cass. com., 27 May 2008, LawLex202400000227JBJ.

Cass. com., 8 July 2003, LawLex202300010529JBJ.

Cass. mixte, 7 July 2006, LawLex202200010952JBJ.

Cass. com., 13 March 2012, LawLex202400000229JBJ.

Cass. com., 8 November 2016, LawLex202400000224JBJ: since the writ of summons in question was served on 3 April 2013, a letter dated 4 April 2013 with the subject “filing” was sent to the court registry to transmit a copy of the summons, and attached to this letter were a fiscal stamp and a check, of the same date, for the amount of the filing fees, which was cashed, the Court of Appeal was able to sovereignly deduce from these findings that the copy of the summons had been submitted to the registry on 4 April 2013, more than eight days before 19 April 2013, the date of the hearing, in accordance with the provisions of Article 857 of the Code of Civil Procedure.

Cass. com., 13 February 2019, LawLex202400000230JBJ. Conversely, see Cass. 2e civ., 1 October 2009, LawLex202400003371JBJ, which approves the decision of the trial court that, after noting that the writ of summons was not filed with the court registry, concluded that it had lapsed and that the limitation period had been incurred.

Cass. 2e civ., 29 February 1984, LawLex202200010313JBJ; 6 April 2006, LawLex202300008897JBJ, regarding a writ of summons, served to a third party, which was not filed with the court registry; Cass. com., 18 December 1984, LawLex202300002405JBJ.

2. Proceedings before the Judicial Court and the Commercial Court

102. Time-limits

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

102. Time-limits

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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