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

Article 958 of the Code of Civil Procedure grants the first president the power, during the appeal proceedings, to order on application any urgent measures relating to the safeguarding of the rights of a party or a third party when circumstances require that they not be taken adversarially (Art. 958 CPC). Thus, during the appeal procedure, only the first president of the Court of Appeal is competent to order on application a measure of seizure-counterfeiting . The implementation of Article 958 of the Code of Civil Procedure implies, however, according to the Court of Cassation, that the measure requested must relate to the dispute before the Court of Appeal and cannot extend to the prescription of an investigative measure intended to justify, if necessary, a claim that has not yet been brought before the Court of Appeal .

In cases where proceedings before the court involve the instruction of counsel, the application is submitted by a lawyer under the conditions provided in Article 930-1 concerning the electronic communication of documents (Art. 959 CPC).

Since the entry into force of Decree No 2019-1419 of 20 December 2019, the first president rules according to the expedited procedure on the merits in cases provided for by law or regulation (Art. 958-1 CPC). This is notably the case when authorizing an immediate appeal against a decision ordering an expert assessment (Art. 272 CPC) or against a decision to stay judgment (Art. 380 CPC).

Otherwise, the procedure follows Articles 493 et seq. of the Code of Civil Procedure relating to orders on ex parte application, regardless of the jurisdiction from which they originate. Thus, the application must expressly state the circumstances likely to justify a derogation from the adversarial principle . 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). This precision, intended to ensure compliance with the adversarial principle, is a condition for the admissibility of the application . If it is submitted during proceedings, it must indicate the court seized (para. 2) and may, in case of urgency, be submitted at the judge's domicile (para. 3).

According to Article 496, para. 2, if the application is granted, any interested party may refer the matter to the judge who issued the order and, therefore, to the first president . Finally, pursuant to Article 497, the first president has the power to amend or retract their order , even if the trial court is seized of the case.

Cass. com., 14 September 2010, LawLex202200000756JBJ.

Cass. 2e civ., 6 May 1999, LawLex202400000322JBJ.

Cass. 2e civ., 7 June 2012, LawLex202300003064JBJ; 11 July 2013, LawLex202300012605JBJ; 8 January 2015, LawLex202300002032JBJ; 18 February 2016, LawLex202300012607JBJ.

Cass. 2e civ., 11 February 2010, LawLex202300002010JBJ.

Cass. 2e civ., 19 February 2015, LawLex201500000217JBJ; 1 September 2016, LawLex202300002708JBJ; 22 March 2018, LawLex202300012609JBJ; Cass. com., 9 January 2019, LawLex202300012621JBJ; 6 February 2019, LawLex202300001564JBJ.

Cass. 2e civ., 23 June 2016, LawLex202300003413JBJ. See also, Cass. 2e civ., 23 June 2011, LawLex202300012614JBJ, which emphasizes that the application for retraction falls under the exclusive jurisdiction of the court that issued the order.

43. Orders on ex parte application