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 fixed-date procedure, along with interim proceedings and expedited proceedings, constitutes the third fast-track procedure, but it is the only one that can be initiated before the Judicial Court in disputes subject to ordinary written procedure. Although it shares similarities with the expedited procedure on the merits, particularly in allowing decisions on the merits and addressing urgency, i …

The fixed-date procedure, along with interim proceedings and expedited proceedings, constitutes the third fast-track procedure, but it is the only one that can be initiated before the Judicial Court in disputes subject to ordinary written procedure. Although it shares similarities with the expedited procedure on the merits, particularly in allowing decisions on the merits and addressing urgency, it is distinguished by an essential feature: the expedited procedure on the merits can only be used if expressly provided for by a statute.

The use of the fixed-date procedure is particularly advantageous in disputes requiring both interim investigative measures and a decision on the merits. This procedure is also useful when interim proceedings encounter a serious challenge. The legislator provides the rules relating to the fixed-date procedure before the Judicial Court in Articles 840 to 844 of the Code of Civil Procedure.

In the event of a characterized emergency , the president of the court may authorize the applicant, upon their application, to summon the defendant on a fixed date (Art. 840, para. 1, CPC). In other words, the fixed-date procedure is subject, except for exceptions , to the authorization of the president of the Judicial Court . The issuance of a fixed-date summons without authorization can, however, be regularized . To be admissible, the application must state the reasons for the emergency, contain the applicant's submissions, and refer to the supporting documents. A copy of the application and the documents must be submitted to the president to be filed in the court's record (Art. 840, para. 2 and 3, CPC). If the president grants authorization, they may designate, if necessary, the chamber to which the case is assigned (Art. 840, para. 1, CPC). The order on the application authorizing the fixed-date summons constitutes a judicial administrative measure which, as such, is not subject to any appeal and cannot give rise to a motion for retraction .

Once the authorization of the president of the Judicial Court is granted, the claimant may then summon the defendant to a fixed date. According to Article 841 of the Code of Civil Procedure, the summons must, on pain of invalidity, indicate the day and time set by the president when the case will be called, as well as the chamber to which it is assigned . A copy of the application is attached to the summons (para. 1). The absence of the copy of the application and the order authorizing the fixed-date summons does not constitute a substantive irregularity affecting the summons . The summons informs the defendant that they may review the copy of the documents referred to in the application at the court registry and requires them to disclose their own documents before the hearing date (para. 2). Before the hearing date, the defendant is also required to instruct counsel (Art. 842 CPC).

Furthermore, Article 772 of the Code of Civil Procedure provides that in the cases provided for in Article 840, the copies of the application and the documents submitted to the president, as well as a copy of his order, are placed by the court clerk in the file as soon as it is constituted. If, on the day the case is to be called, the copy of the writ of summons has not been submitted to the court registry, the court clerk automatically returns the copies he holds to the lawyer. The court clerk immediately informs the lawyers whose instruction is known to him of the registration number in the general register, the day and time set by the president of the court for the calling of the case, and the chamber to which it is assigned, this notice being given to the lawyers whose instruction is not yet known, as soon as the copy of the act of instruction is submitted to the court registry (Art. 773 CPC).

The court is seized by the submission of a copy of the writ of summons to the court registry (Art. 843, para. 1, CPC). This submission must be made before the date set for the hearing, failing which the summons will lapse (Art. 843, para. 2). The lapse is noted ex officio by order of the president of the chamber to which the case is assigned (Art. 843, para. 3).

When the fixed-date procedure takes place before the Court of Appeal, the Court of Cassation considers that the court is validly seized by the submission of only a copy of the writ of summons, without the need to attach copies of the documents intended for the respondent's information, and that the absence of submission of this summons cannot be sanctioned by lapse . This solution also applies to the Judicial Court due to the similarity of the texts applicable to the fixed-date procedure regardless of the level of jurisdiction. The Court further specifies that when the quashed appeal decision was rendered according to the fixed-date procedure, the formalities related to this procedure do not need to be repeated, as the investigation is resumed before the referral Court of Appeal in the state of the procedure not affected by the cassation .

Furthermore, Article 837 of the Code of Civil Procedure establishes a "bridge" to the fixed-date procedure within the framework of proceedings before the judge in summary proceedings, at the request of one of the parties, if urgency justifies it. Indeed, the president of the Judicial Court or the judge of the protection litigation, seized in summary proceedings, may refer the case to a hearing for which he sets the date so that a decision on the merits can be made. This order results in the court being seized. Paragraph 2 specifies that when representation by a lawyer is mandatory before the court to which the case is referred, proceedings are then conducted as stated in Article 842 and the last three paragraphs of Article 844. Additionally, when the president of the court orders the re-summoning of the non-appearing defendant, the latter is summoned by an act of a judicial commissioner at the initiative of the claimant.

Article 844 outlines the conduct of the hearing. First, “on the day of the hearing, the president ensures that sufficient time has elapsed since the summons for the summoned party to have prepared their defense” (para. 1). Then, “if the defendant has instructed counsel, the case is argued immediately as it stands, even in the absence of the defendant's submissions or based on simple oral submissions” (para. 2). Finally, “if necessary, the president of the chamber may use the powers provided in Article 779 [referral of the case to a new hearing before him] or refer the case to the pre-trial judge” (para. 3) and “if the defendant has not instructed counsel, proceedings are conducted according to the rules set out in Article 778 [referral of the case to the pleading hearing]” (para. 4).

In accordance with Article 843, paragraph 4, "at any stage of the proceedings, the parties may expressly agree for the proceedings to take place without a hearing in accordance with the provisions of Article L. 212-5-1 of the Code of Judicial Organization. In this case, the president of the chamber organizes the exchanges between the parties. They present their claims and arguments in writing. Communication between them is done by notification between lawyers and is justified to the president of the chamber within the time limits he sets. He may apply the provisions provided in the fifth paragraph of Article 446-2 and Article 446-3 [relating to referral to a later hearing]. He sets the date by which the parties must communicate their claims, arguments, and exhibits to the court registry. On this date, the registry informs the parties of the date on which the judgment will be rendered. The judgment is adversarial." However, according to paragraph 5, "the president of the chamber may decide to organize a hearing if he considers that it is not possible to render a decision based on the written evidence or if one of the parties requests it."

Finally, Article R. 145-28 of the Commercial Code provides that when one of the parties wishes to contest the setting of the price of the revised or renewed lease, they may seek the authorization of the president of the Judicial Court to initiate a fixed-date procedure, in accordance with Articles 840 to 844 of the Code of Civil Procedure. However, the writ of summons does not need to reproduce or contain elements already brought to the defendant's attention.

Cass. 1re civ., 1 March 2005, LawLex202400000060JBJ: the obligation to resort to the fixed-date procedure, which inherently includes the criterion of urgency, exempts the court from having to establish its existence.

Cass. 1re civ., 14 February 2008, LawLex202300014926JBJ: the provisions of Article 13 of Decree No 73-1202 of 28 December 1973, which stipulate that the public or ministerial officer, subject to disciplinary proceedings, must be summoned to appear on a fixed date before the Judicial Court, seized in disciplinary matters, thereby exclude the authorization of the court president required in the case of a fixed-date procedure; Cass. 3e civ., 1 October 2020, LawLex202200006964JBJ: the voluntary intervener in a fixed-date procedure does not need to seek prior authorization for a fixed-date summons.

Cass. com., 23 May 2006, LawLex202300014928JBJ: pursuant to the combined provisions of Articles R. 266-1, L. 266, para. 2, of the Book of Tax Procedures and 840 of the Code of Civil Procedure (former Art. 788 of the Code of Civil Procedure), the fixed-date procedure requires, in all matters, an authorization from the president of the court rendered on the applicant's motion.

Cass. 1re civ., 12 December 2006, LawLex202400000716JBJ.

Cass. 2e civ., 24 June 2004, LawLex202400000058JBJ.

Cass. 1re civ., 12 July 2005, LawLex202400000059JBJ.

Cass. 3e civ., 12 October 2005, LawLex202400000066JBJ.

Cass. 2e civ., 17 May 2023, LawLex202400000061JBJ.

Cass. 2e civ., 29 September 2022, LawLex202300014927JBJ.

2. Proceedings before the Judicial Court and the Commercial Court

67. Fixed-date procedure

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

67. Fixed-date procedure

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise