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

Pursuant to Article 989 of the Code of Civil Procedure, “when the notice of appeal to the Court of Cassation does not contain a statement, even a summary one, of the grounds for cassation invoked against the challenged decision, the appellant must, under penalty of forfeiture established by order of the first president or their delegate, send to the Court of Cassation registry, no later than withi …

Pursuant to Article 989 of the Code of Civil Procedure, “when the notice of appeal to the Court of Cassation does not contain a statement, even a summary one, of the grounds for cassation invoked against the challenged decision, the appellant must, under penalty of forfeiture established by order of the first president or their delegate, send to the Court of Cassation registry, no later than within three months from the delivery or receipt of the acknowledgment of the notice, a mémoire (brief) containing this statement, and, if applicable, the documents invoked in support of the appeal” (para. 1)  and “this brief may be prepared by the party’s representative without a new special power of attorney” (para. 2). The omission of grounds for cassation in the notice of appeal cannot be remedied by the submission of a document drafted in a foreign language for which the appellant has not provided a French translation, despite being requested to do so . Furthermore, if the supplementary brief is not signed by the appellant or by a representative legally qualified to represent them, the appeal must be declared inadmissible .

The 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 (Art. 1023, para. 1, 1°, Code of Civil Procedure) and by two months if they reside abroad (Art. 1023, para. 1, 2°, Code of Civil Procedure).

According to Article 990 of the same code, “when a brief of pleadings is submitted by the applicant, the Court of Cassation's registrar shall immediately notify a copy to the defendant by registered letter with acknowledgment of receipt” . Thus, Article 994, para. 1, of the same code specifies that, in addition to the original, the applicant shall submit as many copies of the memorandum as there are defendants, which are certified as true copies by the signatory of the memorandum.

Article 991 of the Code of Civil Procedure states that “the respondent to the appeal has a period of two months from the notification of the applicant's brief or the expiration of the three-month period provided for in Article 989 to submit, against receipt, or send by registered letter, to the registry of the Court of Cassation, a response brief and, if applicable, file a cross-appeal.”  In this case, they “notify, without delay, a copy of the response brief to the applicant by ordinary mail” (para. 1) and “in the event of a cross-appeal, they notify in the same manner the respondent to this appeal with a copy of the brief provided for in the first paragraph of Article 1010” (para. 2). The Court of Cassation specifies that the defense brief sent to the registry of the Court of Cassation by a lawyer as an agent, without proof that this lawyer held a special power, is inadmissible .

In accordance with Article 1023 of the same code, this period is extended by one month if the defendant resides in Guadeloupe, Guyana, Martinique, Réunion, Mayotte, Saint-Barthélemy, Saint-Martin, Saint-Pierre and Miquelon, French Polynesia, the Wallis and Futuna Islands, New Caledonia, or the French Southern and Antarctic Lands (para. 2) and by two months if they reside abroad (para. 2). Similarly, the defendant must produce as many copies of the response brief as there are claimants, and these copies must be certified as true by the signatory of the brief (Art. 994 CPC).

Pursuant to Article 1009, 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. However, in this case, the president of the competent formation sets the date of the hearing as soon as the rapporteur(s) are appointed.

In all these cases, Article 993 of the same code specifies that, “if an advocate at the Council of State and the Court of Cassation has declared to the court registry that they represent a party, the notification provided for in Article 990 or Article 992 is replaced by a notification made to this advocate” (para. 1) and “the delivery to the advocate, against receipt, of a copy of the brief, bearing the court registry's date stamp, constitutes notification” (para. 2).

In fine, Article 995 of the same code emphasizes that “if the appeal has been lodged according to the rules of the procedure with mandatory representation, it is nonetheless admissible regardless of the procedure subsequently followed” and that “the defendant is not required to be represented by a lawyer at the Council of State and the Court of Cassation.” It follows that the lawyer at the Council of State and the Court of Cassation signing the appeal does not need to justify a special power . The Court of Cassation, however, highlights that the use of the option provided by Article 995 to lodge an appeal according to the rules of the procedure with mandatory representation in a matter exempt from such representation excludes the possibility of invoking the provisions of Article 986 of the same code, particularly regarding the issuance of the receipt of the declaration reproducing the content of Articles 989 and 994 of the same code . Conversely, if an appeal is lodged according to the rules of the procedure with mandatory representation in a matter exempt from such representation under Article 995, the appeal lodged by a lawyer at the Council of State and the Court of Cassation remains subject to the provisions of Article 989 .

Cass. soc., 3 April 1981, LawLex202400002157JBJ: when the notice of appeal to the Court of Cassation made at the registry of the Court of Appeal by a [lawyer] with a special power of attorney, against the judgment rendered, does not contain the statement, even a summary, of any grounds for appeal and does not refer to any text that may have been violated or misapplied, and this omission has not been remedied by filing at the registry, the notice of appeal is inadmissible; 17 April 1986, LawLex202400002181JBJ; 16 March 1999, LawLex202400002183JBJ: the period provided for filing the supplementary brief only begins to run from the day of delivery or, failing that, from the day of presentation of the registered letter containing the receipt of the notice of appeal to the Court of Cassation; Cass. 2e civ., 20 April 2017, LawLex202400001756JBJ: the supplementary brief, which raises a new ground, is inadmissible under Article 989 of the Code of Civil Procedure, as it was filed more than three months after the delivery of the receipt of the notice of appeal to the Court of Cassation.

Cass. soc., 22 July 1986, LawLex202400002182JBJ.

Cass. 3e civ., 17 October 1972, LawLex202400002156JBJ.

Cass. 3e civ., 26 February 1975, LawLex202400002176JBJ: the notification of the memorandum to the defendant is the responsibility of the Court of Cassation's registry, and failure to observe the time limit for doing so does not affect the admissibility of the appeal.

Cass. soc., 16 July 1987, LawLex202400002158JBJ: where the brief containing the counterclaim was received by the registry of the Court of Cassation after the expiry of the time limit provided for in Article 991 of the Code of Civil Procedure, the said claim is inadmissible; 22 January 2014, LawLex202400001763JBJ: the corrective brief is inadmissible, pursuant to Article 991 of the Code of Civil Procedure, as it was filed more than two months after service of the claimant’s brief.

Cass. 1re civ., 4 October 2000, LawLex202400001845JBJ; Cass. soc., 4 December 2002, LawLex202400002159JBJ.

Cass. 1re civ., 4 February 1986, LawLex202400001737JBJ; Cass. soc., 5 October 1993, LawLex202400001743JBJ.

Cass. 2e civ., 18 October 1995, LawLex202400002178JBJ.

Cass. 2e civ., 17 February 1988, LawLex202400002179JBJ; Cass. 1re civ., 18 May 1994, LawLex202400002180JBJ.

4. Proceedings before the Court of Cassation

22. Exchange of pleadings and documents

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

22. Exchange of pleadings and documents

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Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

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