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

The Court of Cassation rules on the law not the facts. The law prohibits it from examining the merits of cases, except where legislative provisions state otherwise. This prohibition principle is established in Article L. 411-2, para. 2, of the Code of Judicial Organization, while Article 311, para. 2, of the same code specifies that “the court of appeal rules sovereignly on the merits of cases,” a …

Concept of review

The Court of Cassation rules on the law not the facts. The law prohibits it from examining the merits of cases, except where legislative provisions state otherwise. This prohibition principle is established in Article L. 411-2, para. 2, of the Code of Judicial Organization, while Article 311, para. 2, of the same code specifies that “the court of appeal rules sovereignly on the merits of cases,” and Article 604 of the Code of Civil Procedure provides that “the appeal to the Court of Cassation aims to have the Court of Cassation censure the non-compliance of the judgment it challenges with the rules of law.” It follows from these texts that the Court of Cassation is competent to review the application of the rule of law, based on the facts that have been sovereignly established by the trial courts and are therefore considered final. Conversely, the scope of review by the Court of Cassation thus determines the discretion of the trial courts.

If, following its review, the Court of Cassation considers that the law has been misapplied, it quashes and annuls the challenged decision. Pursuant to Article L. 431-4 of the Code of Judicial Organization, subject to the provisions of Article L. 411-3 of the same code , the Court then refers the case to another court of the same nature as the one from which the quashed decision originated, so that a new decision can be made on the facts and the law. Conversely, if it finds that the law has been correctly applied, it dismisses the appeal.

However, the concept of review (contrôle) by the Court cannot be limited to its effect. The nature of the review, as well as its intensity and scope, actually vary. The review can indeed be “disciplinary” or “formal” when it purely concerns the procedure or reasoning, or it can be “normative” or “substantive” when it relates to what has been judged on the merits. Moreover, the intensity of the normative review varies. In principle, the Court of Cassation does not have to review the materiality of the facts found by the trial courts , nor the assessment of evidence , nor the interpretation of contracts . However, it cannot exclusively focus its review on legal grounds, to the total exclusion of factual grounds. Thus, the legal classification of certain concepts, too fact-laden and generally left to the sovereign assessment of the trial courts , can nevertheless be subject to review in certain matters  or depending on the chambers of the Court of Cassation, or certain concepts that were not subject to review may become so following a change in case law  or a legislative intervention.

Thus, normative review is characterised by a gradual increase in intensity. It ranges from an absence of review in cases involving the discretionary power of trial courts , to review limited to the existence of reasoning when the factual elements are subject to their sovereign assessment ,  to more minimal review, which is reduced to verifying that courts have drawn an admissible legal conclusion from their findings, and finally to substantive review, which consists of ensuring that the only legally acceptable solution, based on the factual findings, is indeed the one rendered by the courts.

Finally, while the Court of Cassation ensures the proper application of the law and guarantees equal treatment before the courts, it also has the mission of unifying the law by overseeing the interpretation of laws. From this unifying function , the highest court in the French judicial order derives the ability to adjust its own jurisdiction. The scope of normative review therefore varies according to the value and origin of the legal norm to be applied or interpreted.

Art. L. 411-3, COJ: “The Court of Cassation may quash without referral when the quashing does not require a new ruling on the merits.”

It may also, in civil matters, rule on the merits when the interest of the proper administration of justice justifies it.

In criminal matters, it may, by quashing without referral, put an end to the dispute when the facts, as they have been definitively established and assessed by the trial courts, allow it to apply the appropriate rule of law. (...)."

Cass. 2e civ., 4 December 1969, LawLex202500001156JBJ: the trial courts, to determine the bursting of the tire, have sovereign discretion over the evidence submitted to them; Cass. 1re civ., 21 October 1997, LawLex202400009561JBJ: it is for the trial courts to assess, in the exercise of their sovereign power, whether a document makes the alleged fact plausible and can therefore be considered as a beginning of proof in writing; Cass. 2e civ., 23 October 2003, LawLex202500001155JBJ: a court of appeal, in exercising its sovereign power to assess the value and scope of the evidence submitted for debate, is not required to consider damage as established solely because it has not been expressly contested by the opposing party; Cass. soc., 12 June 2019, LawLex202500000027JBJ: the trial courts have sovereign discretion over the facts and evidence submitted to them.

Cass. 1re civ., 2 February 1970, LawLex202500001152JBJ: the court of appeal has sovereign discretion to assess the value and scope of an extrajudicial admission; Cass. 1re civ., 26 November 1980, LawLex202300005091JBJ: the trial courts have sovereign power to determine the scope of the expert's mission, which cannot be challenged before the Court of Cassation; Cass. 1re civ., 13 January 1993, LawLex202500001148JBJ: the trial courts, unless otherwise provided by law, have sovereign discretion to assess the value of presumptions; Cass. 1re civ., 6 January 1998, LawLex202300003056JBJ: the trial courts have the discretionary power to order or not to order an investigative measure; Cass. 2e civ., 16 December 2004, LawLex202500001104JBJ: the court of appeal has sovereign discretion to assess the value of the evidence submitted to it and the value of investigative measures, as well as the scope of the expert's mission; Cass. 1re civ., 31 January 2006, LawLex202500000008JBJ: the trial courts have sovereign discretion to assess the value and scope of the testimonies submitted in the proceedings; Cass. com., 28 May 2013, LawLex202500000025JBJ: the trial courts are not required to explain the evidence they decide to dismiss and, by refusing to order an expert assessment, they merely exercise their discretionary power.

Cass. 1re civ., 19 February 1991, LawLex202400009570JBJ: the interpretation of the terms of an agreement falls within the sovereign power of the trial courts. However, the trial courts can only interpret agreements if they are obscure or ambiguous, See Cass. 1re civ., 29 May 1996, LawLex202500000558JBJ.

The sovereign assessment by trial courts includes factual concepts requiring the evaluation of a psychological state (common intention of the parties, See Cass. 3e civ., 1 December 1971, LawLex202300013614JBJ; liberal intention, See Cass. 1re civ., 25 February 1997, LawLex202500000349JBJ; good faith, see Cass. 3e civ., 7 November 1979, LawLex202500001186JBJ); an economic assessment, such as the evaluation of damage, See in matters of unfair competition, Cass. com., 21 October 2014, LawLex201400001145JBJ; a date, See Cass. 3e civ., 11 October 2006, LawLex202200007542JBJ; the knowledge of a fact, See Cass. com., 27 October 1998, LawLex202100004246JBJ.

The classification of fault is subject to distinct reviews depending on the matters: it is not reviewed in divorce matters, but it is, for example, in labor law disputes, see Cass. soc., 8 February 2017, LawLex202500001895JBJ.

Such is the case of a serious challenge in interim proceedings subject to review by the Court of Cassation, see Cass. ass. plén., 16 November 2001, LawLex202300014818JBJ. Cf. earlier ruling, Cass. 1re civ., 4 October 2000, LawLex202400009984JBJ.

The court is not required to provide reasons for its decision when exercising its discretionary power, such as in the case of the appropriateness of an investigative measure, see Cass. com., 3 July 1984, LawLex202500001105JBJ; Cass. 1re civ., 6 January 1998, LawLex202300003056JBJ; Cass. com., 28 May 2013, LawLex202500000025JBJ; regarding the apportionment of costs between the unsuccessful parties, See Cass. 3e civ., 29 May 2002, LawLex202200009478JBJ; concerning the refusal to reduce the amount of a penalty clause, see Cass. com., 16 June 2004, LawLex202300012343JBJ.

Such is the case with the assessment of damage and its methods of compensation, see Cass. com., 21 October 2014, LawLex201400001145JBJ: the assessment of damage from unfair competition falls under the sovereign discretion of the trial courts, which are not required to specify the various elements, nor to explain the criteria used for the assessment.

Art. L. 411-1, COJ: “There is, for the entire Republic, only one Court of Cassation.”

4. Proceedings before the Court of Cassation

33. Concept of review

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

33. Concept of review

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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