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

The notice of appeal is immediately notified by simple letter from the court clerk to the respondents, indicating the obligation to instruct counsel (Art. 902, para. 1, CPC). This has been the case since 1 September 2024, except in cases where Article 906, relating to the implementation of expedited proceedings, applies . According to Article 960 of the Code of Civil Procedure, the instruction of counsel by the respondent (or any person becoming a party during the proceedings) is “notified to the other parties by notification between lawyers” (para. 1). It indicates, if the party is a natural person, their name, first names, profession, domicile, nationality, date and place of birth, and if it is a legal entity, its form, name, registered office, and the body that legally represents it (paras. 2 to 4). The Court of Cassation has held that when the appellant, in addition to their domicile, has not indicated their profession, nationality, date, and place of birth, the information in the instruction of counsel drafted in the first instance cannot compensate for this . The bar to proceedings based on the inadmissibility of submissions not mentioning the actual domicile of the parties can be rectified until the day of the closure's pronouncement, or, in the absence of preparation for trial, until the opening of the proceedings . The pre-trial judge cannot rule on the inadmissibility, which falls under the sole jurisdiction of the court of appeal ruling on the merits . The filing of the copy of the instruction of counsel with the court registry is done either upon its notification or, if this is prior to the court's referral, at the same time as the filing of the copy of the notice (Art. 962).

If the respondent does not instruct counsel within one month from the sending of the notification letter or if this letter is returned to the court registry, Article 902, para. 2, provides that the court clerk shall inform the appellant's lawyer so that the latter may proceed by serving the notice of appeal . The service must be carried out within one month of the notice sent by the registry, under penalty of the declaration of appeal being subject to lapse, which may be noted ex officio (Art. 902, para. 3) , unless in the meantime, the respondent has instructed counsel before the service of the notice of appeal. In this case, notification is made to their lawyer (Art. 902, para. 4) . The Court of Cassation previously considered that the obligation for the appellant to notify the notice of appeal to the lawyer that the respondent had previously instructed, within one month following the receipt of the notice sent by the registry to the appellant's lawyer, was not prescribed under penalty of lapse of this notice of appeal . It also held that the lapse is incurred not due to a formal defect of the notice of appeal, but due to the absence of service of a notice of appeal within the meaning of Article 902 of the Code of Civil Procedure, this lapse, which sanctions the absence of service of the notice of appeal within the allotted time, not constituting, according to the high court, a disproportionate sanction to the pursued aim, which is to ensure the speed and efficiency of the appeal procedure with mandatory representation, and is not contrary to the requirements of Article 6.1 of the Convention for the Protection of Human Rights and Fundamental Freedoms . In the case of multiple respondents, the lapse applies to all of them, given the indivisibility of the dispute, when the service has been made within the time limit set by Article 902 only with respect to one of them . The act of service must, under penalty of invalidity, inform the respondent that if they do not instruct counsel within fifteen days from it, they risk a judgment being rendered against them based solely on the elements provided by their opponent and that, failing to submit within the time mentioned in Article 909, their pleadings may be declared inadmissible ex officio (Art. 902, para. 5).

Once appointed, the respondent's lawyer informs the appellant's lawyer and submits a copy of their act of appointment to the court registry (Art. 903 Code of Civil Procedure). The first president then assigns the case to a chamber, and the registry notifies the appointed lawyers (Art. 904, paras. 1 and 2, Code of Civil Procedure). For the purposes of scheduling and distribution formalities, the clerk presents the first president with a copy of the notice, application, or joint petition upon its submission to the registry, with the first president's decision being simply noted in the margin of the copy (Art. 967, Code of Civil Procedure). Furthermore, “the court file is accompanied by that of the first instance court, which the clerk requests as soon as the court is seized” (Art. 968, Code of Civil Procedure).

Finally, pursuant to Article 970, “the court registrar immediately informs the lawyers whose instruction is known to him of the general register number, the day and time set by the first president for the hearing 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 act of instruction is filed with the court registry.

Precision is important because in the context of expedited proceedings, “the appellant serves the notice of appeal within twenty days of receiving the notice of setting sent to them by the court registry, failing which the notice of appeal will be deemed lapsed ex officio by the president of the chamber seized or the judge designated by the first president” and “under penalty of nullity, the service document informs the respondent that, failing to instruct counsel within fifteen days from the service, they risk a judgment being rendered against them based solely on the elements provided by their opponent and that, failing to submit within the [two-month] period mentioned in Article 906-2, their submissions risk being declared inadmissible ex officio” (Art. 906-1, CPC).

Cass. 2e civ., 28 October 1999, LawLex202400008737JBJ.

Cass. 2e civ., 13 January 2022, LawLex202300010340JBJ, which adds that while the burden of proof of the fictitious nature of the domicile lies with the party invoking this irregularity, it is up to the party claiming to regularize it to prove that the new address provided constitutes their actual domicile.

Cass. 2e civ., 18 January 2024, LawLex202400008739JBJ.

Cass. 2e civ., 22 October 2020, LawLex202400000328JBJ: when it finds that the document attached to the service documents carried out pursuant to Article 902 of the Code of Civil Procedure consists not of a summary of the notice of appeal, but of a document that does not confirm receipt by the court registry of the notice of appeal, the Court of Appeal may find the absence of service of the notice of appeal and declare its lapse.

The clarification regarding the lapse of summons raised ex officio was provided by Decree No 2023-1391 of 29 December 2023. The ex officio raising is pronounced by the pre-trial judge (Art. 911 Code of Civil Procedure).

This paragraph was added by Decree No 2023-1391 of 29 December 2023, the former paragraph 4 becoming paragraph 5. See, in an earlier ruling, Cass. 2e civ., 15 November 2018, LawLex202400000363JBJ: the appellant who serves the respondent, within the regulatory time limit, with the summary of the notice of appeal, which was sent to them by an electronic message from the court registry via the lawyer's private virtual network (RPVA), fulfills the obligation incumbent upon them to serve the said notice to the respondent in the absence of the latter's instruction, following the notice sent by the registry.

Cass. 2e civ., 14 November 2019, LawLex202400000361JBJ; 19 March 2020, LawLex202400008860JBJ.

Cass. 2e civ., 1 June 2017, LawLex202400000325JBJ.

Cass. 2e civ., 14 November 2013, LawLex202400008861JBJ; 19 March 2020, LawLex202400000696JBJ, which holds that in the case of indivisibility of the dispute, the lapse of the appeal with respect to one of the respondents results in the inadmissibility of the appeal as a whole.

8. Obligation for respondent to instruct counsel