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

An appeal may be lodged by any party with an interest by means of a notice of appeal sent by registered mail to the registry of the court that rendered the decision (Art. 950 CPC). While the notice can be verbal, it cannot be sent by fax . The notice is submitted by a lawyer if representation is mandatory. It can also be made by a public or ministerial officer if authorized by current provisions (Art. 950 CPC). The sending, delivery, and notification of procedural documents, exhibits, notices, warnings or summonses, reports, minutes, as well as copies and extracts bearing the enforceable formula of judicial decisions, can be carried out electronically via the “virtual private network for lawyers” under the technical conditions set by the order of 20 May 2020 regarding electronic communication in civil matters before the courts of appeal . The appeal period in non-contentious matters is fifteen days in accordance with Article 538 of the Code of Civil Procedure. It starts not from the pronouncement of the decision but from its notification by the court clerk, by registered letter with acknowledgment of receipt . The party who, through no fault of their own, was unable to exercise the appeal within the prescribed period against a non-contentious decision, may request the president of the court to be relieved from foreclosure (Art. 541 CPC). They have a period of two months from the first act served in person to do so. If their request is granted, the appeal period runs from the date of the decision, unless the president reduces the period or orders that the summons be made for the day they set (Art. 540 CPC).

The appeal is admissible even in the absence of other parties (Art. 547 CPC). It is also available to third parties to whom the judgment is notified (Art. 546 CPC) .

Once the notice of appeal is filed, the judge may amend or retract their decision (Art. 952, para. 1, Code of Civil Procedure). Indeed, judicial decisions from the non-contentious jurisdiction do not have the authority of res judicata and may be rescinded or amended if the circumstances under which they were made have themselves changed . The judge must, within one month, inform the party of their decision to re-examine the case or to refer it to the court (Art. 952, para. 3). The court registry clerk is then responsible for promptly transmitting the case file, along with the notice and a copy of the decision, to the court registry (Art. 952, para. 2).

The investigation and judgment of cases before the full bench of the Court of Appeal in non-contentious matters are governed, according to Article 953, by the rules applicable to non-contentious matters before the Judicial Court. Non-contentious cases must be disclosed to the Public Prosecutor's Office (Art. 809 CPC). A reporting judge (juge rapporteur) is appointed by the president of the chamber seized or to which the case is assigned, who has, for the investigation of the case, the same powers as the court (Art. 810 CPC). The judge has significant investigative powers as they conduct, even ex officio, all useful investigations (Art. 27, para. 1, CPC). They have broad prerogatives concerning third parties who may provide insight or whose interests may be affected by their decision, as they have, under Article 27, para. 2, the ability to hear them without formalities. This is a faculty and not an obligation . In non-contentious matters, the judge can base their decision on all facts related to the case submitted to them, including those not alleged. However, they cannot consider facts not alleged by the applicant without seeking the latter's explanations .

Finally, if the court is properly seized and rules on the arguments raised, the judge is not required to summon the applicant . The judge may decide without proceedings (Art. 28 CPC). According to the Court of Cassation, this provision is not contrary to Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms . If there are proceedings, the Public Prosecutor's Office is required to attend or to provide its opinion (Art. 811 CPC). The proceedings take place in chambers (Art. 434 CPC), failing which it is void (Art. 446 CPC).

Cass. 3e civ., 8 June 1995, LawLex202400000323JBJ.

Cass. 1re civ., 13 January 1993, LawLex202200005814JBJ.

See, however, in the case of an order on ex parte application, Cass. 2e civ., 22 February 2007, LawLex202400008876JBJ, which holds that the time limit for appeal available to the applicant when the application is not granted starts from the day the order is issued or from the date on which the applicant became aware of it, regardless of whether the notification of the decision was ordered.

On the requirement of notification, See Cass. 1re civ., 23 January 1996, LawLex202300014507JBJ.

Cass. 1re civ., 6 April 1994, LawLex202300008383JBJ.

Cass. 1re civ., 4 October 1988, LawLex202200008863JBJ, Bull. civ. I, No 262.

Cass. 2e civ., 1 December 1993, LawLex202200006695JBJ; 17 October 2019, LawLex202200008864JBJ.

Cass. 2e civ., 28 June 2006, LawLex202200006688JBJ.

40. Conduct of proceedings