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

Article 493 of the Code of Civil Procedure defines the order on ex parte application as “a provisional decision rendered without adversarial proceedings in cases where the applicant is justified in not summoning the opposing party.” Article 845 of the Code of Civil Procedure provides two grounds for initiating ex parte proceedings. The president of the Judicial Court or the judge with jurisdiction …

Proceedings instituted on ex parte application

Article 493 of the Code of Civil Procedure defines the order on ex parte application as “a provisional decision rendered without adversarial proceedings in cases where the applicant is justified in not summoning the opposing party.” Article 845 of the Code of Civil Procedure provides two grounds for initiating ex parte proceedings. The president of the Judicial Court or the judge with jurisdiction over protection-related litigation (juge des contentieux de la protection) may first be seized by application in cases specified by law (Art. 845, para. 1, CPC):

- Article 145 of the Code of Civil Procedure allows the court to order any legally admissible investigative measures at the request of any interested party, by application or in interim proceedings, if there is a legitimate reason to preserve or establish evidence of facts on which the resolution of a dispute may depend before any trial. While urgency is not a required condition for ordering investigative measures by application based on this text, the trial courts have sovereign power to assess the legitimacy of the reason for requesting an in futurum investigation . These measures can only be ordered by application when circumstances require that they not be conducted adversarially .

- Ex parte proceedings are also applicable in certain cases under the jurisdiction of the family affairs judge (Articles 1137 to 1143 CPC), particularly in matters of divorce by mutual consent (Article 1089 CPC), as well as for the adoption of protective measures for victims of violence (Article 1136-3 CPC).

- In matters of designs and models, counterfeiting can be proven by any means (Art. L. 521-4, para. 1, Intellectual Property Code), Article L. 521-4, paragraph 2, of the Intellectual Property Code states that “for this purpose, any person with standing to bring proceedings for counterfeiting is entitled to have carried out in any place and by any court bailiffs, if necessary assisted by experts appointed by the applicant, by virtue of an order issued on ex parte application by the competent civil court, either a detailed description, with or without sampling, or the actual seizure of the allegedly infringing objects as well as any related documents. The order may authorize the actual seizure of any document related to the allegedly infringing objects in the absence of the latter.” Similarly, in matters of patents, Article L. 615-3, paragraph 1, of the same code provides that “the competent civil court may also order any urgent measures on ex parte application when circumstances require that these measures not be taken adversarially, particularly when any delay would be likely to cause irreparable harm to the applicant.”

- Pursuant to Article R. 631-1 of the Consumer Code, “civil disputes arising from the application of this code fall, when the amount of the claim does not exceed 5,000 euros, under the rules relating to the application by motion in accordance with the provisions of Articles 756 to 759 of the Code of Civil Procedure.”

- In matters of co-ownership, under the terms of Law No 65-557 of 10 July 1965  and Decree No 67-223 of 17 March 1967 , the president of the Judicial Court may be petitioned to appoint a managing agent (Art. 17, para. 3, Law No 65-557 of 10 July 1965 and 46 Decree No 67-223 of 17 March 1967) as well as members of the co-ownership council (Art. 48 Decree No 67-223 of 17 March 1967), a provisional administrator of the co-ownership responsible for convening the assembly of co-owners for the purpose of appointing a managing agent (Art. 17, para. 4, Law No 65-557 of 10 July 1965), a provisional administrator of the co-owners' association (Art. 29-1, I Law No 65-557 of 10 July 1965 and 47 Decree No 67-223 of 17 March 1967), or an ad hoc representative in case of conflicts of interest between co-owners (Art. 54 Decree No 67-223 of 17 March 1967).

Subsequently, Article 845, para. 2, of the Code of Civil Procedure allows the president of the Judicial Court to order on application any urgent measures when circumstances require that they not be taken adversarially . The court cannot grant the application without determining whether the requested measure requires a derogation from the adversarial principle . Both the application and the order issued on this application must clearly show how the requested measure requires a derogation from the adversarial principle . It is incumbent upon the court, when faced with an application for the retraction of an order on application, to determine, even ex officio, whether the application and the order issued on its basis set out and characterize the circumstances that require the measure not to be taken adversarially . The court that notes that the mission entrusted to the judicial commissioner is more likely to succeed if executed without the opposing party being informed, regarding the delivery of documents and the hearing of several people who may confer, characterizes the circumstances justifying a derogation from the adversarial principle .

The element of surprise can justify the adoption of such measures by the president of the Judicial Court based on Article 845, para. 2. Thus, the latter has the power to authorize an inspection to pre-establish evidence of a violation of the duty of fidelity by a spouse at the home of a third party . These measures can also be justified by the impossibility of identifying the protagonists . Thus, the Paris Court of Appeal considered that given the urgency and the particularly dangerous nature of the occupation by travelers stationed on the site of a thermal power plant, whose operating and monitoring conditions are demanding and involve the safety of individuals, the use of adversarial proceedings is not suitable due to the practical difficulty of individually summoning all the occupants since they are not identified . Furthermore, since the president of the labor tribunal does not have the authority to rule by order on ex parte application and the reporting judge has not been granted the power to obtain documents against the will of their holder, the president of the Judicial Court is competent to order, in accordance with Article 845, para. 2, the production of documents intended for labor tribunal proceedings .

Article 845, para. 3, of the Code of Civil Procedure specifies that “applications related to ongoing proceedings are submitted to the president of the chamber seized or to which the case has been assigned, or to the judge already seized.” However, these provisions apply only to applications filed during the first instance proceedings . Thus, an application aiming to raise, for the first time, before the Court of Cassation, under the guise of a violation of Article 845, para. 3, the incompetence of the president of the chamber to which the case has been assigned is inadmissible . In trademark law, the Court of Cassation considers that when the Judicial Court is seized on the merits, the party requesting a seizure for counterfeiting during the proceedings must act based on Article 845 alone, excluding Article L. 716-7 of the Intellectual Property Code , with the president of this court to which the case has been assigned being the only competent authority to order a seizure for counterfeiting on application .

According to Article 846, para. 1, of the Code of Civil Procedure, the application must be submitted by a lawyer or by a public or ministerial officer when the latter is authorized by the provisions in force. This applies to the application aimed at obtaining an urgent measure from the president of the Judicial Court in circumstances requiring that it not be taken adversarially . The instructing lawyer is required to sign it, and the absence of a signature at the bottom of the application constitutes a substantive invalidity of the act, whose information cannot be used to establish the reality of the instruction . In cases where the parties are exempt from representation by a lawyer, the application is submitted or sent to the court registry by the applicant or by any representative, and if it is submitted during proceedings, it must indicate the court seized (Art. 846, para. 2, CPC). The provisions of Article 846 do not apply to orders under Article 64 of the Customs Code .

The ex parte proceedings before the president of the Judicial Court must comply with the provisions of Articles 493 et seq. of the Code of Civil Procedure relating to orders on ex parte applications in general. Pursuant to Article 494, the application must be submitted in duplicate, be reasoned, and include a precise indication of the documents relied upon (para. 1). If it is submitted during proceedings, it must indicate the court seized (para. 2) and, in case of urgency, may be submitted at the judge's residence (para. 3). The order on ex parte application must be reasoned (Art. 495, para. 1, CPC)  and is enforceable upon presentation of the original (Art. 495, para. 2, CPC). A copy of the application and the order is left with the person against whom it is enforced (Art. 495, para. 3, CPC), excluding the documents relied upon in support of this application . However, this rule only applies to the person who bears the execution of the measure, whether or not they are a potential defendant in the contemplated trial . The Court of Cassation considers that the judicial commissioner, who, by virtue of an order appointing him under Article 145 of the Code of Civil Procedure, has gone to the location of his mission and justified his status, without being able to execute this mission, is not required to provide this copy to the person against whom the order is enforced . Under Article 496, “if the application is not granted, an appeal may be lodged unless the order is issued by the first president of the Court of Appeal. The appeal period is fifteen days. The appeal is filed, instructed, and judged as in non-contentious matters” (para. 1) and “if the application is granted, any interested party may refer to the judge who issued the order” (para. 2), thus, to the president of the Judicial Court. The Court specified that the judge of applications, seized of a request for retraction of one of his orders, can only rule in summary proceedings by exercising the powers exclusively conferred on him by Article 496, paragraph 2, even if the summons is entitled “summons in the form of summary proceedings” . However, it considered that the dispute over the execution of the investigative measure ordered under Article 145 of the Code of Civil Procedure, which does not affect the decision ordering this measure, does not fall within the powers of the judge of retraction . According to Article 497, the president nevertheless has the power to modify or retract his order, even if the trial court is seized of the case. The request for retraction of the order on ex parte application, which requires the adversarial principle to be restored, implies that the defendants to this request be called to the retraction proceedings . If following the retraction of the order that ordered the investigative measure, the report of the expert prepared in execution of this decision can produce no effect , the judge seized of the request for invalidity of investigative measures executed under an order on ex parte application, which he pronounces the retraction, must note the loss of legal basis of these measures and the resulting invalidity .

Finally, the Court of Cassation specified that the jurisdiction granted to the president of the Judicial Court to rule on an ex parte application cannot override that conferred on the president of the Commercial Court, by Article 875 of the Code of Civil Procedure, when the dispute, for the resolution and in the context of which the investigative measures are required, falls under the jurisdiction of the latter .

Cass. 2e civ., 15 January 2009, LawLex202300001925JBJ.

Cass. 2e civ., 23 November 1994, LawLex202300003273JBJ.

Cass. soc., 17 May 1977, LawLex202500000505JBJ: it is for the trial courts to determine whether the president of the Judicial Court, who has the power to order on ex parte application all urgent measures when circumstances require that they not be taken adversarially, should in this case rule in such a manner with respect to the other occupants, subject to their ability to refer the matter to him, due to the urgency of preventing imminent harm, the practical difficulty of individually involving all occupants, and the possibility for the de facto leaders of the strike movement to present common defenses for all personnel.

CA Paris, 6 November 2002, LawLex202500000506JBJ.

Cass. soc., 12 April 1995, LawLex202500000499JBJ, which approves the trial courts for having, without violating Article 8.1 of the European Convention on Human Rights, ordered the production of the disputed documents to allow the employee to assert their rights in the dispute with their employer, since the president of the Judicial Court derives from Articles 142 and 812 (current Art. 845) of the Code of Civil Procedure the power to order the production of evidence held by a party.

Cass. com., 14 September 2010, LawLex202200000756JBJ, which specifies that during the appeal proceedings, only the first president of the Court of Appeal is competent to order a seizure for counterfeiting on application.

Cass. com., 1 February 2023, LawLex202300004049JBJ.

Cass. com., 26 March 2008, LawLex202200000752JBJ.

Cass. com., 14 February 2012, LawLex202300010985JBJ.

Cass. 2e civ., 13 November 1985, LawLex202500000507JBJ.

Cass. 2e civ., 24 February 2005, LawLex202500000508JBJ.

Cass. com., 24 June 1997, LawLex202500000509JBJ.

Law No 65-557 of 10 July 1965 establishing the status of the co-ownership of built buildings, OJ of 11 July 1965.

Cass. 2e civ., 23 June 2016, LawLex202300002439JBJ, cited above.

Cass. 2e civ., 14 January 2021, LawLex202300010982JBJ.

Cass. 2e civ., 13 November 2015, LawLex202300010981JBJ.

Cass. 2e civ., 30 November 2016, LawLex202300010984JBJ.

Cass. 2e civ., 19 February 2015, LawLex201500000217JBJ.

Cass. 2e civ., 17 March 2016, LawLex202300002438JBJ.

Cass. 2e civ., 7 January 2010, LawLex202300012600JBJ.

Cass. 2e civ., 4 June 2015, LawLex202300002711JBJ.

Cass. 2e civ., 5 January 2017, LawLex202300006049JBJ.

Cass. 2e civ., 20 March 2014, LawLex202200007837JBJ.

Decree No 67-223 of 17 March 1967 establishing public administration regulations for the application of Law 65-557 of 10 July 1965 setting the status of the co-ownership of built buildings, OJ of 22 March 1967.

Cass. 1re civ., 10 February 1993, LawLex202400003336JBJ, which overturns the appeal decision stating, to refuse to retract the order made on ex parte application, that the notary is bound by a general and absolute secrecy from which only the court can release him, and holds that, concerning a document “likely to reveal an act of disloyalty committed by an employee,” the bank's request is legitimate, whereas the retention of the document held in a notary's accounts is ensured and its production must necessarily give rise to an adversarial debate on the lifting of the notary's professional secrecy.

Cass. 2e civ., 13 May 1987, LawLex202300001924JBJ, which quashes the appeal judgment that upheld, to grant the application of a company for the appointment, by the procedure of the order on ex parte application, of a judicial commissioner to attend meetings of a works council, that the procedure of order on ex parte application is “perfectly legal” although non-adversarial, as the option of retraction is available to any interested party, without investigating whether the requested measure required a derogation from the adversarial principle; 23 November 1994, LawLex202300003273JBJ, previously cited.

Cass. 2e civ., 5 May 2011, LawLex202300003406JBJ; 23 June 2016, LawLex202300002439JBJ, which specifies that the order on ex parte application must state a circumstance likely to justify proceeding without adversarial debate and must necessarily be reasoned.

Cass. 3e civ., 22 September 2016, LawLex202400000717JBJ; 21 January 2021, LawLex202500000500JBJ.

Cass. 2e civ., 15 January 2009, LawLex202300001925JBJ, préc.

Cass. 1re civ., 18 November 1992, LawLex202300008478JBJ.

2. Proceedings before the Judicial Court and the Commercial Court

81. Proceedings instituted on ex parte application

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81. Proceedings instituted on ex parte application

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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