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

Pursuant to Article L. 721-3, 1° of the Commercial Code, the Commercial Court has jurisdiction over disputes relating to undertakings between merchants . Law No 2016-1547 of 18 November 2016  extended the court's jurisdiction to disputes between artisans.
Article L. 121-1 of the Commercial Code defines a trader as one who engages in commercial actions and makes it their regular profession . To det …

Traders / Merchants (commerçants)

Pursuant to Article L. 721-3, 1° of the Commercial Code, the Commercial Court has jurisdiction over disputes relating to undertakings between merchants . Law No 2016-1547 of 18 November 2016  extended the court's jurisdiction to disputes between artisans.

Article L. 121-1 of the Commercial Code defines a trader as one who engages in commercial actions and makes it their regular profession . To determine the status of a trader, the trial courts must ascertain whether the individual meets these two conditions . Thus, an activity involving the establishment of various real estate diagnostics, which is not purely intellectual, falls into the category of service provision, thereby acquiring a commercial nature insofar as it is conducted regularly and for profit . Conversely, the performance by an agent of a limited number of commercial actions, consisting of the act of transfer that conferred control of the transferred company and the signing of an asset and liability guarantee on the occasion of this transfer of control, is not sufficient, due to the limited nature of the actions, to demonstrate that the agent has made it their regular profession, so they cannot be classified as a trader .

Registration in the trade and companies register entails a simple presumption of commerciality that can be rebutted by contrary evidence . To contest their status as a trader, the person registered in the trade and companies register must prove that third parties knew they were not a trader; otherwise, the presumption is irrefutable against them . To establish the status of a trader, the trial courts must determine whether, despite their registration in the trade register, the person concerned has actually engaged in commercial actions and made it their regular profession, and assess the significance of the evidence produced to rebut the presumption of trader status resulting from registration in the same register .

The status of a trader can equally concern natural persons or legal entities. It may involve a natural person regularly registered in the trade and companies register , or a natural person who, even if not having the status of a trader, performs acts of a commercial nature . The status of a trader has also been recognized for an association that conducts intermediary operations for the purchase or sale of real estate within the meaning of Article L. 110-1 of the Commercial Code , for an economic interest group (EIG) as long as its statutes authorize it to carry out all commercial operations directly or indirectly related to the achievement of its purpose , or for mutual insurance companies, when it does not result from their statutes that the commercial operations in question can only be carried out as an ancillary to their civil activity , or even for the non-trader heirs of a trader who, during their lifetime, granted a promise to sell their business .

On the other hand, the status of trader was denied to the commercial agent , the statutory auditor , the driving school director , the corporate officer acting on behalf of entities and not on their own behalf , as well as the person registered in the trade and companies register as a “collaborating spouse” of the business operated by their spouse . Furthermore, a person required to register in the trade and companies register, pursuant to Article L. 123-1 of the Commercial Code, cannot claim the status of trader, either with respect to third parties or public administrations, until their registration .

Finally, in a dispute that is civil for one party and commercial for the other, no text grants jurisdiction to the Commercial Court to rule on a claim against a person who is neither a trader nor has performed a commercial action . However, the jurisdiction of commercial courts may be upheld when the defendants are persons who are neither traders nor de jure managers of a commercial company, provided that the facts alleged against them are directly related to the management of that company . In any case, the non-trader claimant, if they can choose to act before either the civil court or the commercial court , may always waive the right to challenge the jurisdiction of the Commercial Court .

Cass. com., 27 October 2009, LawLex202200011133JBJ, which quashes the appeal decision that holds, to declare the Judicial Court competent, that if the Commercial Court, pursuant to Article L. 721-3 of the Commercial Code, is the natural judge of the parties since the dispute, unrelated to the status of commercial leases, opposes two merchants regarding the payment of invoices, the Judicial Court, which hears all cases for which jurisdiction has not been expressly assigned to another court, is not incompetent to hear the dispute whose jurisdiction has not been expressly assigned to the Commercial Court; 26 October 2010, LawLex202400009110JBJ, which considers that the dispute, concerning the settlement of the debit balance of a professional current account opened by the defendant, while the latter is a merchant, registered in the trade and companies register, for the needs of his commercial activity, falls under the jurisdiction of the Commercial Court.

Law No 2016-1547 of 18 November 2016 on the modernization of 21st-century justice, JO 0269 of 19 November 2016, Art. 95, I, 1°.

Cass. com., 14 October 2020, LawLex202400009120JBJ, which approves the trial courts for having upheld the jurisdiction of the Commercial Court, regardless of whether the business being created was to be operated personally by the individual concerned or by a company in which they hold direct or indirect interests.

Cass. com., 14 February 2006, LawLex202200011241JBJ; Comm. com. électr. No 7-8, July-August 2006, comm. 113, LÉCUYER, according to which an association that permanently offers individuals a website aimed at facilitating the exchange of real estate, thereby providing a service that brings together supply and demand for the sale and purchase of real estate, conducts intermediary operations for the purchase or sale of real estate within the meaning of Article L. 110-1 of the Commercial Code, so that the Commercial Court has jurisdiction to hear the dispute.

Cass. com., 15 June 2010, LawLex202200007518JBJ. A contrario, see Cass. com., 29 January 2020, LawLex202300003972JBJ; Contrats conc. consom. No 4, April 2020, comm. 60: in this case, it does not result from either the authorization given to the GIE by Article 2 of the statutes to carry out “any operations whatsoever allowing the achievement of its purpose” or the enumeration of operations given as examples by the same article that these are commercial operations and that, therefore, the purpose of the GIE would have presented a commercial character.

Cass. com., 5 May 2009, LawLex202300009750JBJ.

Cass. com., 20 May 1969, LawLex202400009118JBJ.

Cass. com., 29 October 1979, LawLex202400009112JBJ, which approves the trial courts for having decided that the civil jurisdiction is competent to hear the claim brought by the commercial agent, not based on his buyer-reseller relationship with the principal company, but exclusively on the termination of his mandate; 24 October 1995, LawLex200200005504JBJ; 28 May 2002, LawLex200200004169JBJ, prec., which specifies that being registered in the trade and companies register and not being registered in the special register specific to commercial agents is not sufficient to exclude the status of commercial agent in favor of that of trader.

Cass. com., 27 January 1965, LawLex202400009119JBJ.

Cass. com., 3 June 1986, LawLex202300009400JBJ: since a driving school director personally gives lessons to students and, although assisted by salaried instructors who provide the same teaching and enable him to make profits, he does not habitually engage in the exercise of commercial actions, this driving school director does not have the status of a trader, notwithstanding the size reached by the undertaking he manages.

Cass. com., 29 January 2020, LawLex202400009116JBJ.

Cass. com., 21 May 1996, LawLex202400009237JBJ: insofar as a person has been registered in the trade and companies register only as a “collaborating spouse” of the business operated by their spouse, it cannot be inferred from the professional loan taken out in their name, nor from the credit line opened on the company's current account for which they have signing authority, that this person has engaged in commercial activity as a regular profession; 11 February 2004, LawLex202100002107JBJ.

Cass. com., 4 October 1994, LawLex202200005361JBJ, D. 1995, 456, note BARABE-BOUCHARD, which quashes the appeal judgment that considers the wife of a trader, alleged to be a teacher, as a trader, without investigating whether the person concerned does not habitually engage in another activity other than that of a trader, exclusive of the latter.

Cass. com., 11 February 2004, LawLex202100002107JBJ.

Cass. 2e civ., 1 March 2018, LawLex202200006478JBJ, which quashes the appeal judgment that holds that, even if a natural person is not a trader and even if they have entered into an act that would not be commercial for them, the dispute can nevertheless, in the absence of any challenge on their part, be submitted to the jurisdiction of the Commercial Court, the presence of this party in the proceedings not preventing the jurisdiction of this court resulting from the application of legal provisions.

Cass. com., 18 November 2020, LawLex202000003268JBJ.

Cass. com., 18 November 2020, LawLex202000003268JBJ,  which approves the courts of second instance who, having found that the claimants do not have the status of merchant, deduce that they have a jurisdictional option allowing them to validly bring an action for unfair competition before the civil court against a commercial company and two of its employees; 15 December 2021, LawLex202200001377JBJ, which quashes the appeal decision that holds, to assert the exclusive jurisdiction of the Commercial Court, that the vigilance plan, whose establishment and implementation are directly related to the management of the company, constitutes a commercial act and not a mixed act which alone would grant a right of option to the claimant associations, whereas the claimants, non-merchants, can choose to act before the civil court.

Cass. 2e civ., 17 May 1982, LawLex202400009124JBJ.

Cass. com., 19 October 1993, LawLex202400009115JBJ: by noting that, to support the claim that the defendant habitually engaged in commercial actions in his own name, the claimant merely invoked a letter in which the defendant mentioned his “representation” activities, and by holding that it results from the court's investigations that the latter, registered as a commercial agent, “does not and has not engaged in any commercial activity,” the appellate courts conducted the inquiry they were accused of omitting.

Cass. com., 5 December 2006, LawLex200600002520JBJ.

Cass. com., 15 March 2005, LawLex202400009113JBJ, which approves the decision of the trial court judges who, after finding that the wife, co-holder of a joint account used for commercial transactions, acknowledged, like her husband, owing a certain amount corresponding to a debt arising from commercial activity, requested, like her husband, a “supplier credit” by stating the businesses they owned and provided personal assets as security to ensure the payment of commercial debts, concluded that, in the absence of contrary evidence from the wife, these elements demonstrate that she personally participated, alone or with her husband, in the regular performance of acts of a commercial nature aimed at the interest of the joint enterprise, according to choices not shown to have been dictated to her.

Cass. com., 27 September 2016, LawLex202100002164JBJ.

Cass. com., 28 May 2002, LawLex200200004169JBJ.

Cass. com., 26 October 2010, LawLex202400009110JBJ, cited above; 27 September 2016, LawLex202100002164JBJ, prec.

2. Proceedings before the Judicial Court and the Commercial Court

86. Traders / Merchants (commerçants)

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

86. Traders / Merchants (commerçants)

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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