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

If conciliation is not recorded at the hearing, the case is, pursuant to Article 830 of the Code of Civil Procedure, immediately judged or, if it is not ready to be judged, postponed to a later hearing. In this case, the court clerk notifies by any available means the parties who were not verbally informed of the hearing date . This provision is part of the adversarial nature of the proceedings. Indeed, according to the Court of Cassation, a judgment cannot be deemed adversarial if it does not appear from the judgment or the submissions that, following the failure of the conciliation attempt, the parties were notified by the registry of the date on which the case would be heard . However, no provision requires the registry to inform the lawyer of the reopening of the proceedings .

Article 446-1 of the Code of Civil Procedure provides that the parties orally present their claims and the grounds supporting them at the hearing . However, since oral proceedings present a risk of legal uncertainty for the parties, who, failing to establish that the court has indeed been seized of the alleged claims, cannot reproach it for leaving them unanswered, this text adds that the parties may also “refer to the claims and grounds they have formulated in writing.” In other words, the parties are free to formulate their claims and grounds in writing, without adhering to any particular formality , provided they refer to them orally at the hearing. This rule requires the party invoking its claims in writing in an oral procedure to appear or be represented to validly formulate and justify them . Therefore, submissions sent to the judge by a party who does not appear or is not represented are inadmissible . Thus, if, in an oral procedure, the exception of invalidity can be validly raised notwithstanding the prior filing of written submissions on the merits, it is on the condition that this exception is indeed invoked at the hearing before the party raising it addresses the merits orally . Conversely, it follows from the oral nature of the procedure that the documents submitted to the debates at the hearing by an appearing party are presumed, unless proven otherwise, to have been debated adversarially . This presumption is, however, inapplicable in oral proceedings when a ground raised ex officio by the judge has been debated adversarially, as long as a party was not present at the hearing .

Article 446-1, para. 2, goes further by allowing the parties, when a specific provision so provides, to submit their claims and arguments in writing without appearing at the hearing. This is the case with Article 831 of the Code of Civil Procedure, which states that “the court may, in accordance with the second paragraph of Article 446-1, exempt a party who requests it from appearing at a subsequent hearing. In this case, the court organizes the exchanges between the parties. Communication between them is made by registered letter with acknowledgment of receipt or by notification between lawyers, and proof is provided to the court within the time limits it sets. At the end of the last hearing, the court registry informs the parties of the date on which the judgment will be rendered.” Article 832, para. 2, similarly provides that the author of an incidental claim seeking the granting of a payment period pursuant to Article 1343-5 of the Civil Code may not appear at the hearing, in accordance with the second paragraph of Article 446-1. In this case, the court grants the requests made against this party only if it deems them regular, admissible, and well-founded. Finally, Article 833 provides that “the resumption of proceedings, after a suspension, takes place upon notice given to the parties by the court clerk, by any means.”

Cass. 2e civ., 8 February 2007, LawLex202200005784JBJ: it is the responsibility of the court registry to notify the parties of the date of the hearing to which the case has been referred.

Cass. 2e civ., 14 March 1984, LawLex202300014479JBJ.

Cass. 3e civ., 1 February 2018, LawLex202300009616JBJ.

Cass. 2e civ., 19 March 2015, LawLex202300014593JBJ.

Cass. 2e civ., 1 July 2021, LawLex202300001805JBJ.

Cass. 2e civ., 14 June 1989, LawLex202300008889JBJ: since the procedure is oral, submissions sent to the court by a party who does not appear or is not represented are inadmissible; 8 November 2001, LawLex202300014472JBJ; 23 September 2004, LawLex202300008891JBJ: the orality of the procedure requiring the party to appear or be represented to validly make claims and justify them, the court may, without violating Article 6.1 of the European Convention on Human Rights, declare its observations sent by mail inadmissible due to lack of appearance.

Cass. 2e civ., 12 February 2004, LawLex202300014478JBJ.

Cass. 3e civ., 6 April 2005, LawLex202300014473JBJ.

Cass. 2e civ., 11 January 2006, LawLex202300002694JBJ; 9 June 2022, LawLex202300002658JBJ: in oral procedure without mandatory representation, the court must invite the parties to explain the absence in the file of the exhibits invoked, whose disclosure was mentioned in the written submissions orally supported at the hearing and whose disclosure had not been contested.

Cass. 2e civ., 22 October 2020, LawLex202200005911JBJ; Cass. 1re civ., 26 May 2021, LawLex202200005894JBJ.

78. Proceedings with a hearing