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 value and origin of the standard to be applied or interpreted determine the extent of the normative review by the Court of Cassation.
1) Review excluded
Pursuant to the principle of the separation of administrative and judicial authorities , the Court of Cassation cannot, except in criminal matters , review the legality of administrative acts, whether it is a regulatory or individual act, a co …

The value and origin of the standard to be applied or interpreted determine the extent of the normative review by the Court of Cassation.

Pursuant to the principle of the separation of administrative and judicial authorities , the Court of Cassation cannot, except in criminal matters , review the legality of administrative acts, whether it is a regulatory or individual act, a contract, or a unilateral act, as the administrative judge is solely competent to hear such matters .

Also excluded is the review of the interpretation of non-regulatory administrative acts, whether individual or collective, which fall under the jurisdiction of the administrative court  as well as the review of the constitutionality of laws , which falls under the jurisdiction of the Constitutional Council .

The interpretation of foreign law falls within the sovereign power of the trial courts  and its application, except in cases of distortion, is excluded from the scope of review by the Court of Cassation . Similarly, it is not for the Court of Cassation to review the existence and application of international trade principles and practices .

Finally, regarding customs and practices in general, the determination of their existence  and their interpretation  fall under the sovereign assessment of the trial courts.

The Court of Cassation reviews the uniform application and interpretation  across the entire French territory of laws and regulations, including the interpretation of regulatory administrative acts since the Septfonds ruling .

It also ensures the review of the law's compliance with treaties , international conventions, or  agreements  thzat are on binding France. These treaties and conventions have superior authority in the domestic legal order  and must prevail over French law . The review of conformity with international norms does not concern norms of constitutional value . Since the Court of Justice has the exclusive authority to interpret European Union law, the Court of Cassation must, except in particular circumstances, refer a preliminary question to the CJEU pursuant to Article 267 TFEU when it is faced with a difficulty of interpretation .

Finally, while the interpretation of private law commitments falls under the sovereign power of the trial courts , the Court of Cassation ensures that this interpretation does not distort the clear and precise clauses of the contract  and assesses the validity of the contractual commitment in light of the applicable standards or practices .

Decree of 2 September 1795 (16 Fructidor Year III), unique Art.: “Repeated prohibitions are made to the courts from taking cognizance of acts of administration, of whatever kind they may be, under penalty of law”;

Law of 16-24 August 1790 on judicial organization, Art. 13: “Judicial functions are distinct and shall always remain separate from administrative functions. Judges may not, under penalty of forfeiture, in any way disrupt the operations of administrative bodies, nor summon administrators before them for reasons related to their functions.” In this sense, see Trib. confl., 17 October 2011, No 3828, SCEA du Chéneau, LawLex202400009606JBJ: by virtue of the principle of separation of administrative and judicial authorities established by Article 13 of the law of 16-24 August 1790 and by the decree of 16 Fructidor year III, subject to matters naturally reserved for the judicial authority and unless otherwise provided by legislative provisions, only the administrative jurisdiction is competent to hear appeals seeking the annulment or modification of decisions made by the administration in the exercise of its public authority prerogatives.

Art. 111-5, Criminal Code: “Criminal courts have jurisdiction to interpret administrative acts, whether regulatory or individual, and to assess their legality when the resolution of the criminal trial submitted to them depends on this examination.”

Cass. 3e civ., 14 February 1984, LawLex202400009578JBJ.

On the control of the interpretation of law, see Art. 4, Civil Code: “A judge who refuses to judge, under the pretext of the silence, obscurity, or insufficiency of the law, may be prosecuted as guilty of denial of justice.” Also see, Cass. 1re civ., 15 July 1993, LawLex202300007994JBJ, noting that, free in their methods of interpreting the law, the judicial court cannot be reproached for not having conducted research in the preparatory parliamentary work related to it.

Trib. confl., 16 June 1923, No 00732, Septfonds: an administrative act, due to the nature of the bodies from which it emanates, can also partake of the character of a legislative act, since it contains provisions of a general and regulatory nature, and as such, the judicial courts responsible for applying it are competent to determine its meaning if an interpretative difficulty arises during a dispute over which they have competent jurisdiction. See also, Trib. confl., 17 October 2011, No 3828, SCEA du Chéneau, LawLex202400009606JBJ, specifying that by virtue of the principle of effectiveness derived from the TEU and the TFEU, the national court, responsible for applying the provisions of Union law, is obliged to ensure their full effect by disregarding, if necessary, any contrary provision on its own authority, so that it must be able, in case of interpretative difficulty of these norms, to refer the matter itself to the Court of Justice for a preliminary ruling or, when it deems itself capable, to apply Union law without being required to first refer a preliminary question to the administrative court, in cases where the conformity of an administrative act with European Union law happens to be at issue before it.

The Treaty [on the Functioning of the European Union], which, pursuant to Article 55 of the Constitution, has authority superior to that of statutes, establishes a legal order of its own integrated into that of the Member States, which is directly applicable to the nationals of those States and binding on their courts. See Cass. mixte, 24 May 1975, Société des Cafés Jacques Vabre, LawLex200700000072JBJ.¹

Cass. 1re civ., 10 March 1993, LawLex202500000523JBJ, held that the provisions of the Convention on the Rights of the Child, signed in New York on 26 January 1990, cannot be invoked before the courts, as this Convention, which imposes obligations only on the signatory States, is not directly applicable in domestic law; 23 March 1994, LawLex202400009446JBJ: Article 55 of the Constitution grants treaties authority superior to that of statutes only if they are applied by the other contracting party.

Constitution of 4 October 1958, Art. 55: “Treaties or agreements duly ratified or approved shall, upon publication, have authority superior to that of statutes, subject, with respect to each agreement or treaty, to its application by the other contracting party.”

Cass. mixte, 24 May 1975, Société des Cafés Jacques Vabre, LawLex200700000072JBJ: Article [110 TFEU], which is directly applicable to the nationals of the Member States, must be applied by the national court to the exclusion of any conflicting provisions of domestic law, even if enacted subsequently; Cass. soc., 14 January 1987, LawLex202500000598JBJ: the application of the jurisdictional rule contained in an international treaty, which has authority superior to that of domestic law, must prevail over the latter.

Cass. ass. plén., 2 June 2000, LawLex200600000447JBJ: the supremacy granted to international commitments does not apply within the domestic legal order to provisions of constitutional value.

ECJ Case C-283/81 CILFIT, Judgment of 6 October 1982, , stated that a national court against whose decisions there is no judicial remedy under national law is required, when a question of Community law arises before it, to comply with its obligation to make a reference, unless it has determined that the question raised is not relevant, or that the provision of European Union law in question has already been interpreted by the Court of Justice, or that the correct application of European law is so obvious as to leave no scope for any reasonable doubt. The existence of such a situation must be assessed in light of the specific characteristics of European law, the particular difficulties involved in its interpretation, and the risk of divergent case law within the Community.

Cass. 1re civ., 26 February 1962, LawLex202500000719JBJ: the interpretation carried out by the trial courts in the exercise of their sovereign power is beyond the review of the Court of Cassation, and is made necessary by the obligation to reconcile the provisions of several clauses which, clear and precise in themselves, render the meaning and scope of the act ambiguous when taken as a whole; Cass. 2e civ., 3 December 1969, LawLex202500000720JBJ: it is for a court of appeal to interpret a contract sovereignly in the absence of a written document.

Trib. confl., 16 June 1923, No 00732, Septfonds, holding that an order issued by the Minister of War, in conjunction with the Minister of Public Works, pursuant to the Decree of 29 October 1914, to regulate the conditions of time and responsibility under which commercial transport will be carried out during the war, constitutes an administrative act, due to the nature of the bodies from which it emanates, whose legality is solely within the jurisdiction of the administrative court to control. The administrative court is in principle solely competent to rule, if necessary by way of a preliminary question, on any challenge to the legality of decisions taken by the administration in the exercise of its public authority prerogatives, raised in the context of a dispute primarily under the jurisdiction of the judicial authority, see Trib. confl., 17 October 2011, No 3828, SCEA du Chéneau, LawLex202400009606JBJ, adding, however, that if, in the case of a serious challenge concerning the legality of an administrative act, the courts of the judicial order ruling in civil matters must stay proceedings until the preliminary question of the legality of this act is resolved by the administrative court, it is otherwise when it is manifestly apparent that the challenge can be upheld by the court seized of the main issue.

Cass. 1re civ., 4 June 1985, LawLex202400009574JBJ: in the presence of interwoven clauses where some appeared to grant without restriction what others denied, a court of appeal merely exercises its power to interpret ambiguous provisions that it cannot distort; 8 June 1971, LawLex202400009574JBJ: it is for the trial courts to assess sovereignly, through necessary and therefore exclusive interpretation without distortion, the meaning and scope of the statutes of an association.

Cass. 1re civ., 17 March 1982, LawLex202500000697JBJ: to order a taxi driver to pay for deliveries of construction materials to a company, a Court of Appeal cannot state that it is customary in the profession that there is no order or signed document between the contracting parties, without noting that this custom, whose origin and scope are not even specified, placed this company in the impossibility of obtaining written proof; Cass. soc., 14 January 1987, LawLex202500000705JBJ.

Cass. soc., 17 February 1971, No 70-60.080, LawLex202500000690JBJ: only administrative courts have jurisdiction to rule on the interpretation of an individual administrative act.

Cass. crim., 26 February 1974, LawLex202500000597JBJ: legislative texts are binding on the courts of the judicial order, which are not judges of their constitutionality.

Constitution of 4 October 1958, Art. 61 and 61-1.

Cass. 1re civ., 17 December 2009, LawLex202200010088JBJ.

Cass. soc., 20 January 2021, LawLex202400009372JBJ: if it is incumbent upon the French court, which applies foreign law, to investigate and justify the solution given to the disputed issue by the positive law of the concerned State, the application it makes of this foreign law, regardless of its source, statutory or case law, escapes, except in cases of distortion, the review by the Court of Cassation.

Cass. 1re civ., 6 January 1987, LawLex202200010088JBJ.

Cass. crim., 7 November 2006, LawLex200600002535JBJ: it is for the trial courts to sovereignly assess the existence of a professional usage.

4. Proceedings before the Court of Cassation

34. Extent of review

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

34. Extent of review

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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