Introduction

Proceedings with mandatory representation

Proceedings without mandatory representation

Contentious matters

Scope

Proceedings

Non-contentious matters

Proceedings before full bench

Interim orders

Orders on ex parte application (sur requête)

Powers of the First president

3. Proceedings before the Court of Appeal

Pursuant to the new Article 913-6 of the Code of Civil Procedure, stemming from Decree No 2023-1391 of 29 December 2023, and whose provisions reiterate those of the last paragraph of Article 914, the orders of the pre-trial judge have the authority of res judicata on the merits concerning the dispute they resolve  when they rule on:
- a procedural objection relating to the appeal procedure (1°);
- …

Orders of pre-trial judge

Pursuant to the new Article 913-6 of the Code of Civil Procedure, stemming from Decree No 2023-1391 of 29 December 2023, and whose provisions reiterate those of the last paragraph of Article 914, the orders of the pre-trial judge have the authority of res judicata on the merits concerning the dispute they resolve  when they rule on:

- a procedural objection relating to the appeal procedure (1°);

- the admissibility of interventions on appeal (2°);

- an incident terminating the appeal proceedings (3°);

- the admissibility of the appeal (4°) ;

- the lapse of the notice of appeal (5°);

- the inadmissibility of submissions and procedural documents pursuant to Articles 909, 910, and 930-1 (6°) .

If, according to Article 913-7, stemming from Decree No 2023-1391 of 29 December 2023, the order can be issued immediately if necessary, the parties' lawyers having been heard or summoned (para. 1) and summoned to the hearing by the court registry (para. 2), a party may, in case of urgency, by notification between lawyers, invite the other to appear before the pre-trial judge on the day, time, and place set by the latter (para. 3).

In principle, the orders of the pre-trial judge are not subject to any appeal independently of the judgment on the merits (Art. 913-8 CPC, reiterating the provisions of Article 916). However, in certain cases, they may be referred by application to the court within fifteen days of their date . This is the case when they have the effect of terminating the proceedings, when they record its extinction, or when they relate to interim measures  or legal separation (Art. 913-8, para. 2, CPC). They may also be referred under the same conditions when they rule on a procedural objection related to the appeal (Art. 913-8, para. 3, 1° CPC), on the admissibility of the appeal or interventions on appeal (Art. 913-8, para. 3, 2° CPC), on the admissibility of submissions pursuant to Articles 909 and 910 and procedural acts pursuant to Article 930-1 (Art. 913-8, para. 3, 3° CPC), on an incident terminating the appeal proceedings (Art. 913-8, para. 3, 4° CPC), and finally, on the lapse of the notice of appeal (Art. 913-8, para. 3, 5° CPC). The referral is a procedural act that is part of the appeal process, particularly against an order of the pre-trial judge having the authority of res judicata, without initiating an independent proceeding . The Court of Cassation specifies that the court of appeal, seized on referral, can only rule within the scope of the pre-trial judge's subject-matter jurisdiction and cannot address claims or incidents that have not been submitted to it . Furthermore, when the appellant has not yet submitted at the time the pre-trial judge declares the notice of appeal inadmissible, the order of this judge, vested with the authority of res judicata from its pronouncement, immediately terminated the appeal proceedings, so that the overturning judgment of the court of appeal, rendered following a referral procedure devoid of suspensive effect, if it nullified the overturned order, can only restart the time limit for submissions of Article 908 of the Code of Civil Procedure, which had ended with the referred order, without infringing the principle of legal certainty stemming from Article 6, § 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms .

In all cases, the application, submitted to the registry of the chamber to which the case is assigned, must contain, in addition to the information required by Article 57 and on pain of inadmissibility, the indication of the decision being appealed and a statement of the grounds in fact and in law (Art. 913-8, para. 4, CPC).

Cass. 2e civ., 17 September 2020, LawLex202300011112JBJ, specifying that the ground based on the violation of the authority of res judicata by the Court of Appeal of the order of the pre-trial judge, rendered during the same proceedings and which was included in the Court of Appeal's file, is a mandatory public policy provision based on a fact of which the Court of Appeal had been made aware, so it must be declared admissible, including when it is raised for the first time before the Court of Cassation.

Cass. 2e civ., 3 September 2015, LawLex202300011099JBJ: the orders of the pre-trial judge ruling on the bar to proceedings based on the inadmissibility of the appeal have the authority of res judicata on the merits; Cass. 1re civ., 4 November 2015, LawLex202400000880JBJ: it follows from the combination of the provisions of Articles 914, para. 2, and 916, para. 2, of the Code of Civil Procedure, applicable to the application for annulment, that the orders of the pre-trial judge ruling, within the framework of the exclusive jurisdiction conferred upon him, on the bar to proceedings based on the inadmissibility of the application, have the authority of res judicata on the merits and, in this case, may be referred by simple application to the Court of Appeal within fifteen days of their date.

Cass. 2e civ., 18 February 2016, LawLex202400000871JBJ: the order of the pre-trial judge ruling on the inadmissibility of submissions pursuant to Articles 909 and 910 of the Code of Civil Procedure can only be referred to the Court of Appeal, which alone has jurisdiction to hear it, as an appeal to the Court of Cassation is only available against judgments rendered as a last resort; 18 February 2016, LawLex202400000888JBJ: except in cases specified by law, judgments as a last resort that do not terminate the proceedings can only be appealed to the Court of Cassation, independently of the judgment on the merits, if they decide in their operative part all or part of the main issue, so that the order of the pre-trial judge ruling on the inadmissibility of submissions pursuant to Article 909 of the Code of Civil Procedure can only be referred to the Court of Appeal, which alone has jurisdiction to hear it.

Cass. 1re civ., 9 September 2015, LawLex202400000883JBJ: since the order of the pre-trial judge is not referred to the Court of Appeal within fifteen days from its date, it can no longer be challenged; Cass. 2e civ., 3 September 2015, LawLex202300011099JBJ.

Cass. 1re civ., 4 October 2005, LawLex202400000884JBJ: the only remedy regarding interim measures against the order of the pre-trial judge is referral to the Court of Appeal.

Cass. 2e civ., 11 January 2018, LawLex202300014856JBJ; Cass. 2e civ., 18 September 2003, LawLex202400000896JBJ: the order of the pre-trial judge can only be referred to the Court of Appeal, which alone has jurisdiction to hear it, including when the alleged grievance is an abuse of power; Cass. 1re civ., 10 April 2013, LawLex202300011089JBJ: the orders of the pre-trial judge ruling on the bar to proceedings based on the inadmissibility of the appeal have the authority of res judicata on the merits, so they can be referred by simple application to the court within fifteen days of their date. - Also see Cass. 2e civ., 13 March 1996, LawLex202400000897JBJ, specifying that the referral of an order of the pre-trial judge brings the incident before the full bench of the chamber to which the case has been assigned, it being understood that the pre-trial judge who ruled may validly be part of this full bench.

Cass. 2e civ., 9 June 2022, LawLex202400000899JBJ; 13 October 2016, LawLex202400003651JBJ; 4 March 2021, LawLex202400000898JBJ.

Cass. 2e civ., 13 February 2025, LawLex202500006059JBJ.

3. Proceedings before the Court of Appeal

20. Orders of pre-trial judge

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20. Orders of pre-trial judge

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