Introduction

Common provisions for proceedings with and without mandatory representation

Notice of appeal in cassation

Exchange of pleadings and documents

Proceedings with mandatory representation

Notice of appeal

Role of court clerk

Prerequisites

Review procedure

Judicial review in civil matters

Proceedings without mandatory representation

Concept of referral for opinion

Prerequisites for referral

Role of court seeking opinion of Court of Cassation

Role of the Court of Cassation

Procedure

Referral for opinion

Withdrawal

Recusal

Claim of forgery

Removal from the register

Cross-appeal (pourvoi incident)

Incidents

Concept of review (contrôle)

Extent of review

Grounds for appeal to the Court of Cassation

Review by Court of Cassation

Proceedings before the Court of Cassation

4. Proceedings before the Court of Cassation

Articles 978 to 980 of the Code of Civil Procedure govern the exchange of grounds and exhibits between the parties.
First, Article 978, para. 1, states that, “under penalty of forfeiture established by order of the first president or their delegate, the appellant in cassation must, no later than within four months from the appeal , submit to the registry of the Court of Cassation a brief containin …

Exchange of statement of grounds and evidence

Articles 978 to 980 of the Code of Civil Procedure govern the exchange of grounds and exhibits between the parties.

First, Article 978, para. 1, states that, “under penalty of forfeiture established by order of the first president or their delegate, the appellant in cassation must, no later than within four months from the appeal , submit to the registry of the Court of Cassation a brief containing the legal grounds invoked against the contested decision” . According to the Court of Cassation, attroneys are free to choose, in the interest of their client, the grounds for cassation that may be submitted to the court, subject to the obligation to inform the client if they decide not to present a ground expressly requested by the client . This brief in support of the appeal to the Court of Cassation, known as the supplementary brief (mémoire ampliatif), must, under penalty of inadmissibility, specify the invoked ground for appeal, the criticized part of the decision, and how it incurs the alleged reproach (Art. 978, para. 3, Code of Civil Procedure) . Furthermore, it must, under penalty of forfeiture established by order of the first president or their delegate, be notified within the same period to the lawyers of the other parties or to the party not required to appoint a lawyer at the Council of State and the Court of Cassation (Art. 978, para. 1, Code of Civil Procedure). According to the Court of Cassation, it follows from Article 978 of the Code of Civil Procedure that, under penalty of forfeiture, the appellant must file within four months from their appeal any brief containing the invoked legal grounds and that the period granted by Article 1010 of the same code in the event of a cross-appeal only allows them to submit or notify a response brief and not to invoke a new ground for cassation in support of their principal appeal .

Article 978, para. 1, also provides that if the respondent has not instructed counsel, the brief must, under the same penalty, be served on them no later than one month following the expiration of this period , knowing that if, in the meantime, they instruct counsel before the service of the brief, notification is made to their lawyer . In the case of multiple respondents, the brief must be served on all . In the event of service, the document must inform the respondent that if they intend to defend against the appeal, they must instruct a lawyer at the Council of State and the Court of Cassation, inform them that if they do not instruct counsel, the forthcoming judgment cannot be subject to opposition, and also specify the time limit within which the respondent must submit their response brief to the court registry and, if applicable, file a cross-appeal (Art. 980, para. 2, Code of Civil Procedure).

Pursuant to Article 1010, the cross-appeal, even if provoked, must, on pain of inadmissibility pronounced ex officio: - “be made in the form of a brief and contain the same information as the applicant's brief” (para. 1); - “be submitted to the Court of Cassation registry before the expiration of the deadline provided for the submission of the response brief” (para. 2, 1st indent); - “be notified within the same period to the lawyers of the other parties to the cross-appeal; if, in matters where representation is mandatory, the respondent has not instructed counsel, the brief must be served on them no later than one month following the expiration of this period; however, if, in the meantime, the respondent instructs counsel before the service of the brief, notification is made to their lawyer” (para. 2, 2nd indent). The respondent to such an appeal has a period of one month from the notification to submit, and if necessary notify, their response brief (para. 3).

Article 978, para. 2, further specifies that, on pain of inadmissibility, the additional appeal filed pursuant to Article 608, in other words, the appeal against a final judgment that cannot be filed independently of the judgment on the merits, must be made by the mention “additional appeal” affixed to the supplementary brief or by a separate brief containing this mention, submitted and notified to the other parties in the forms and time limits of this Article .

In accordance with Article 1023 of the same code, these time limits are extended by one month if the applicant resides in Guadeloupe, Guyana, Martinique, Réunion, Mayotte, Saint-Barthélemy, Saint-Martin, Saint-Pierre-et-Miquelon, French Polynesia, the Wallis and Futuna Islands, New Caledonia, or the French Southern and Antarctic Lands (para. 1, 1°) and by two months if they reside abroad (para. 1, 2°).

Subsequently, on pain of inadmissibility of the appeal pronounced ex officio, a copy of the contested decision and a copy of the decision confirmed or overturned by the contested decision must be submitted to the court registry within the time limit for filing the brief  (Art. 979, para. 1, Code of Civil Procedure). “In case of incomplete transmission or material error in one of these documents, a notice setting a deadline to remedy it is sent by the rapporteur(s) to the applicant's lawyer under the conditions provided for in Article 981” (Art. 979, para. 2, Code of Civil Procedure). However, according to case law, the mere failure to comply with the substantial formalities provided for in Article 979, paragraph 1, by providing the copies of the decisions referred to is not remediable . Furthermore, according to Article 979-1, “the applicant must also attach the documents relied upon in support of the appeal and a copy of the latest submissions filed by the parties to the appeal before the court from which the contested decision originates.” Thus, when the supplementary brief lacks an offer of proof in support of the ground, the latter is inadmissible . This provision aims to enable the Court of Cassation to exercise its review .

Throughout the investigation, the reporting judge may request the applicant's lawyer to disclose any useful document within the time limit he sets (Art. 981 CPC).

According to Article 982, para. 1, “the respondent to the appeal has a period of two months from the service of the applicant's brief to submit a response brief to the Court of Cassation registry, signed by a lawyer at the Council of State and the Court of Cassation, and to notify the applicant's lawyer in the form of notifications between lawyers” . Therefore, the bar to proceedings based on the inadmissibility of the appeal, invoked in additional observations submitted to the Court of Cassation registry outside the time limit provided by Article 982 of the Code of Civil Procedure, cannot be examined . Para. 2 specifies that “the time limit provided in the preceding paragraph is prescribed on pain of inadmissibility, pronounced ex officio, of the response brief” . However, the Court of Cassation is required to examine ex officio a public policy issue, even when it is filed out of time . A request under Article 700, even if made after the withdrawal but within the time limit provided in Article 982, can also be satisfied . In accordance with Article 1023 of the same code, this period is extended by one month if the respondent resides in Guadeloupe, Guyana, Martinique, Réunion, Mayotte, Saint-Barthélemy, Saint-Martin, Saint-Pierre-et-Miquelon, French Polynesia, the Wallis and Futuna Islands, New Caledonia, or the French Southern and Antarctic Lands (para. 2) and by two months if residing abroad (para. 2).

Finally, the first president or their delegate may also, at the request of one of the parties or ex officio, after consulting the public prosecutor, reduce the time limits provided for the filing of pleadings and exhibits, but in this case, the president of the competent formation sets the date of the hearing as soon as the rapporteur(s) are appointed (Art. 1009 CPC).

Cass. soc., 1 December 2016, LawLex202400001572JBJ: in the absence of filing, within the four-month period, at the Court of Cassation registry of an ampliative brief, the forfeiture of the appeal is incurred; Cass. 1re civ., 23 November 2016, LawLex202400001573JBJ, specifying that since the notice of appeal is not followed, within the period provided by Article 978 of the Code of Civil Procedure, by the filing at the Court of Cassation registry of a brief containing the legal grounds invoked against the challenged decision, without the appellants being able to claim an extension, suspension, or interruption of the period available to them for this purpose, the forfeiture of the appeal is incurred.

Cass. 2e civ., 9 November 2006, LawLex202400001577JBJ: it is appropriate to note the partial forfeiture of an appeal to the Court of Cassation when none of the grounds contained in the supplementary brief are directed against the judgment in question; 9 November 2006, LawLex202400001578JBJ; 17 November 2016, LawLex202400001584JBJ: when the person appealing to the Court of Cassation does not file a brief containing the legal grounds invoked against the challenged decision within the time limit provided by Article 978 of the Code of Civil Procedure, the forfeiture of the appeal is incurred; Cass. 3e civ., 15 December 2016, LawLex202400001580JBJ: when a company has not submitted to the Court of Cassation registry, within the time limit set by Article 978 of the Code of Civil Procedure, a brief containing legal grounds invoked against the challenged judgment, the forfeiture of the appeal is incurred with respect to that judgment.

Cass. 3e civ., 13 January 2009, LawLex202400001583JBJ: the supplementary brief submitted to the court registry and served on the respondent by a company which, due to the death of its manager, lacked a legal representative, is affected by a substantive invalidity that cannot be rectified; Cass. civ. 1re, 12 October 2016, LawLex202400001567JBJ, specifying that the appellant must, on pain of inadmissibility of the appeal pronounced ex officio, submit to the court registry a copy of the contested decision and the one it confirms or overturns, within the time limit for filing the application brief, the rectification of this formality being allowed in case of incomplete transmission or material error by Article 979, para. 2, of the Code of Civil Procedure, provided, however, that an incomplete or erroneous copy of these procedural documents is effectively submitted within the legal time limit.

Cass. 2e civ., 27 September 2018, LawLex202400001774JBJ.

Cass. soc., 3 December 1996, LawLex202400001767JBJ, specifying that the employer who, through the reasons stated in their application, challenges the contested decision for having ordered them to pay an amount as financial compensation for the non-compete clause included in the employment contract of their employee, without producing the transaction whose distortion is alleged, does not enable the Court of Cassation to exercise its review, so that the grounds are inadmissible.

Cass. 2e civ., 28 May 1986, LawLex202200006834JBJ: the respondent's application for the enforcement of Article 700 of the Code of Civil Procedure, being late with regard to Article 982 of the Code of Civil Procedure, is therefore inadmissible; Cass. com., 28 April 1987, No 85-15.674, LawLex202400002160JBJ: an application submitted not only after the withdrawal but also more than two months after the service of the appellants' brief, that is, outside the time limit provided for in Article 982 of the Code of Civil Procedure, is inadmissible; Cass. 2e civ., 13 November 2014, LawLex202400001772JBJ: the two-month period available to the respondent from the service of the appellant's brief to submit a reply brief to the Court of Cassation registry is prescribed on pain of inadmissibility pronounced ex officio for the reply brief filed late.

Cass. 2e civ., 28 June 2018, LawLex202400001775JBJ.

Cass. com., 7 July 2015, LawLex202400001861JBJ, specifying that when the argument that a legislative provision infringes the rights and freedoms guaranteed by the Constitution is raised during an appeal to the Court of Cassation, it must be presented, on pain of inadmissibility, in a separate and reasoned memorandum submitted to the registry within the time limit for the instruction of this appeal, so that the respondent to the principal appeal can only raise a priority preliminary ruling on the issue of constitutionality by a special memorandum filed within the time limit for submitting the defense memorandum; Cass. 2e civ., 7 January 2016, LawLex202400001858JBJ: a defense memorandum contesting the admissibility of the appeal or of an argument is inadmissible if it is filed more than two months after the service of the appellant's memorandum.

Cass. 1re civ., 14 December 2016, LawLex202400001856JBJ.

Cass. 3e civ., 27 April 2011, LawLex202400003779JBJ.

Cass., ass. plén., 14 May 1971, LawLex202400002082JBJ.

Cass. 2e civ., 5 January 2017, LawLex202400001582JBJ: under penalty of being declared inadmissible ex officio, a ground or an element of a ground must specify the invoked ground for appeal, the criticized part of the decision, and how it incurs the alleged reproach; Cass. com., 5 July 2017, LawLex201700001194JBJ: the ground, which merely argues, in its second, third, eighth, and thirteenth branches, that a professional obtaining an advantage without consideration from their partner engages their liability, and invokes Article L. 442-6, now L. 442-1, of the Commercial Code, without specifying which of the various prohibited behaviors under this text was overlooked by the Court of Appeal, does not meet the requirements of Article 978 of the Code of Civil Procedure and must be declared inadmissible; Cass. 1re civ., 3 March 2021, LawLex202400001768JBJ: according to Article 978, paragraph 3, of the Code of Civil Procedure, each ground or each element of a ground must specify, under penalty of being declared inadmissible ex officio, the criticized part of the decision.

Cass. 1re civ., 1 October 1985, LawLex202400001575JBJ.

Cass. com., 27 June 1984, LawLex202400002136JBJ: since the provisions of Articles 978 and 981 of the Code of Civil Procedure, stipulating that the appellant must, no later than within five months from the appeal, serve the respondent with a brief containing the legal grounds invoked against the contested decision, are not respected, the appeal is subject to forfeiture; Cass. 1re civ., 13 March 2008, LawLex202400002069JBJ: in the absence of proper service of the application brief within the required time, the appeal is subject to forfeiture; Cass. 2e civ., 22 January 2015, LawLex202400001579JBJ: since the brief directed against the minister in charge of social security was not served within the time provided by Article 978 of the Code of Civil Procedure, the appeal is subject to partial forfeiture against him. - See also Cass. 1re civ., 5 July 2012, LawLex202400001769JBJ: the provision of Article 978, para. 1, of the Code of Civil Procedure, which provides that the four-month service period of the application brief is extended by one month if the respondent has not appointed a lawyer, is not applicable to the service of the application brief to the Public Prosecutor's Office, the main party and respondent in the appeal, which is exempt from appointing a lawyer at the Council of State and the Court of Cassation; 10 October 2012, LawLex202400001568JBJ; 13 February 2013, LawLex202300002830JBJ.

Cass., mixte, 6 February 2004, LawLex202400002070JBJ: the Attorney General at the Court of Appeal, exempt from instructing counsel at the Council of State and the Court of Cassation, is entitled to serve his brief through the Attorney General at the Court of Cassation to the counsel instructed by the opposing party according to the provisions applicable to service between lawyers.

Cass. 2e civ., 17 November 1971, LawLex202400002132JBJ: when the supplementary brief, filed with the Court of Cassation registry, has not been served on one of the respondents within the allotted time, the forfeiture, pronounced ex officio by the Court of Cassation, is incurred with respect to all parties since the subject of the appeal is indivisible; 2 December 2010, LawLex202400002138JBJ: since the applicants, who appealed to the Court of Cassation against the decision of an enforcement judge declaring inadmissible the application they had made for the treatment of their over-indebtedness situation, only served their brief containing the grounds invoked against the decision to three of the sixteen creditors, respondents in the appeal, due to the indivisibility of the subject of the appeal, the forfeiture of the appeal is incurred with respect to all parties; Cass. com., 14 December 2010, LawLex202400002143JBJ; Cass. 2e civ., 12 July 2012, LawLex202400001585JBJ: since the brief containing the grounds for appeal, submitted to the Court of Cassation registry, has not been served on a respondent, who has not appointed a lawyer, within the time provided by Article 978, para. 1, of the Code of Civil Procedure, the forfeiture is incurred with respect to him and, as the matter is indivisible, this forfeiture must be extended to all parties; Cass. 3e civ., 15 October 2014, LawLex202400002142JBJ: the service of a supplementary brief, by way of a report of unsuccessful searches, to an address other than the last address of the person concerned, as it appeared in his appeal submissions, being irregular, the forfeiture of the appeal is incurred, no brief containing the legal grounds invoked having been regularly served within the allotted time for this purpose; 25 October 2018, LawLex202400001563JBJ: since the supplementary brief was served on the company in question, in its personal name, without mentioning its capacity as trustee and that the syndicate of co-owners, the sole respondent in the appeal, was therefore not the recipient, within the time provided by Article 978 of the Code of Civil Procedure, of any service of the supplementary brief, the forfeiture of the appeal is incurred; 6 February 2020, LawLex202400001564JBJ: since the supplementary brief was not served within the time provided by Article 978 of the Code of Civil Procedure to the other respondents who have not appointed a lawyer, and the subject of the appeal is indivisible, it is necessary to note the forfeiture of the appeal to the Court of Cassation.

Cass. 2e civ., 14 December 2017, LawLex202400001773JBJ: the additional ground developed by the applicants in the appeal in a supplementary brief received after the expiration of the time limit provided for in Article 978 of the Code of Civil Procedure must be declared inadmissible; Cass. 1re civ., 28 February 2018, LawLex202300011564JBJ: an additional appeal that does not include the mention “additional appeal” required by Article 978 of the Code of Civil Procedure on the supplementary brief filed following the first appeal is inadmissible.

Cass. 3e civ., 4 June 2003, LawLex202400002133JBJ; Cass. 1re civ., 16 September 2014, LawLex202400001565JBJ; Cass. 2e civ., 13 October 2016, LawLex202400001566JBJ: the company that has appealed to the Court of Cassation against a judgment confirming the order of a pre-trial judge, without producing this decision or mentioning it in the list of its submissions, must have its appeal declared inadmissible; Cass. 3e civ., 5 October 2017, LawLex202400001776JBJ: the party that appeals to the Court of Cassation without submitting to the court registry, within the time limit for filing the brief, a copy of the decision overturned by the challenged decision, must have its appeal declared inadmissible.

4. Proceedings before the Court of Cassation

7. Exchange of statement of grounds and evidence

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7. Exchange of statement of grounds and evidence

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