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

Withdrawal (désistement), which can be defined as the act by which a party voluntarily decides to cease pursuing a legal action they have initiated, differs from withdrawal from proceedings in that it leads to the abandonment of the claim, thus ending the dispute even before a final decision is rendered by the court. Withdrawal from proceedings is an act by which the claimant decides to suspend or …

Withdrawal (désistement), which can be defined as the act by which a party voluntarily decides to cease pursuing a legal action they have initiated, differs from withdrawal from proceedings in that it leads to the abandonment of the claim, thus ending the dispute even before a final decision is rendered by the court. Withdrawal from proceedings is an act by which the claimant decides to suspend or temporarily end the legal procedure they have initiated, without abandoning their action: the withdrawal only results in the termination of the proceedings . Withdrawal of an appeal to the Court of Cassation, governed by Articles 1024 to 1026 of the Code of Civil Procedure, falls into this second category.

Article 1025 of the Code of Civil Procedure refers to Articles 396, 399, 400, and 403 of the same code. Thus, in accordance with Article 400, the withdrawal of an appeal is permitted in all matters, unless otherwise provided. It can be total or partial if it concerns only one ground or only certain parties. The legislator does not set any time limit. However, the fact that the withdrawal occurred after the submissions for the dismissal of the appeal by the Advocate General and the closure of the proceedings indicates the abusive nature of the latter .

The withdrawal of the appeal must be accepted if it contains reservations or if the defendant has previously filed a cross-appeal (Art. 1024 CPC). Otherwise, it is void . In other words, the withdrawal produces its full and complete effect and cannot be retracted, even if it has not been accepted, as long as it contains no reservations and the defendant has not previously filed a cross-appeal . If the defendant's non-acceptance is not based on any legitimate reason, the court declares the withdrawal perfect, in accordance with the provisions of Article 396 .

The withdrawal of the appeal entails acquiescence to the challenged decision (Art. 403 Code of Civil Procedure), with submission to its provisions . However, it is null if, subsequently, another party itself regularly files an appeal (Art. 403 Code of Civil Procedure) . Nevertheless, the withdrawal by one of the two applicants in the joint appeal, while it results in acquiescence by its initiatior, does not, in a situation of indivisibility, remove them from the case on the appeal of the other applicant . According to the Court of Cassation, the same person, acting in the same capacity, can only file one appeal to the Court of Cassation against the same decision, so that, by application of this principle, no one can, in the form of an ancillary intervention, request the annulment of a judgment after having themselves appealed this decision and then withdrawn . If the party who has withdrawn their appeal to the Court of Cassation is no longer admissible to file a new one against the same ruling , the withdrawal does not constitute a waiver of the right to file an application for judicial review against the challenged decision . Finally, the withdrawal of the appeal entails, unless otherwise agreed, the obligation to pay the costs of the extinguished proceedings (Art. 399 Code of Civil Procedure) .

The First President of the Court of Cassation acknowledges the withdrawal by order (Art. 1026, para. 1, CPC). This order may also be issued by his delegate or the president of the chamber to which the case has been assigned (Art. 1026, para. 1, CPC). However, Article 1026, paragraph 2, specifies that the withdrawal is acknowledged by judgment if it occurs after the report has been filed or if the defendant's acceptance, when necessary, is given only after this filing. This judgment is equivalent to a judgment of dismissal and results in the application of Articles 628 and 630. In other words, the claimant may, in the case of an appeal deemed abusive, be ordered to pay a civil fine not exceeding EUR 10,000 and, within the same limits, to pay compensation to the defendant (Art. 628 CPC), and the judgment entails compulsory enforcement for the payment of the fine, compensation, and costs (Art. 630, CPC). The judge who acknowledges the withdrawal rules, if applicable, on claims based on Article 700 (Art. 1026, para. 1, CPC).

Art. 398 CPC: Withdrawal from proceedings does not entail renunciation of the action, but only termination of the proceedings.

See Cass. 1re civ., 5 November 1996, LawLex202400002346JBJ.

Cass. 2e civ., 27 November 1996, LawLex202400002250JBJ.

Cass. 2e civ., 17 May 1993, LawLex202400002348JBJ: since the withdrawal of the appeal contains no reservation and the application submitted under Article 700 of the Code of Civil Procedure does not constitute a cross-appeal that would have required acceptance of the withdrawal of the appeal, the withdrawal is admissible.

Cass. 2e civ., 9 October 1991, LawLex202400002347JBJ: since the cross-appeal is filed without prior notification of the wtihdrawal from the principal appeal, the withdrawal is void for lack of acceptance, and the cross-appeal is admissible; 27 May 1999, LawLex202400002349JBJ: in the absence of acceptance by the defendant, author of a cross-appeal, of the withdrawal by the applicant of the principal appeal, it is necessary to rule on the principal appeal and the cross-appeal; Cass. soc., 24 September 2008, LawLex202400002354JBJ: the withdrawal of the appeal must be accepted if it contains reservations or if the defendant has filed a cross-appeal prior to its notification; 17 December 2008, LawLex202400002257JBJ: the justified refusal to accept the withdrawal of the principal appeal renders the withdrawal void; Cass. 2e civ., 15 January 2009, LawLex202400002352JBJ: when the defendant does not demonstrate that the cross-appeal they filed precedes the withdrawal of the principal appeal, the cross-appeal is inadmissible; Cass. 3e civ., 13 June 2019, LawLex202400002353JBJ: the defendant having filed a cross-appeal prior to the notification of the withdrawal and not having accepted it, the withdrawal is void.

Cass. soc., 4 March 1992, LawLex202400002351JBJ.

Cass. 3e civ., 11 December 1991, LawLex202400002251JBJ.

Cass. 3e civ., 31 March 2010, LawLex202400002256JBJ, holding that the author of the withdrawal is not admissible to challenge a part of the ruling concerning the party in whose favor they withdrew.

Cass. 3e civ., 14 November 2002, LawLex202400002350JBJ: provided that the forms and time limits set out in Article 1010 of the Code of Civil Procedure are respected, the cross-appeal filed after the order by the first president noting their withdrawal of the main appeal they had previously filed is admissible by application of Articles 1025 and 403 of the Code of Civil Procedure, as long as the main appeal directed against the same judgment by another party is itself admissible. However, the inadmissibility of the main appeal, filed late, results in the inadmissibility of the cross-appeal filed after the expiration of the time limit to act as the main party, the withdrawal of the author of the main appeal being irrelevant: Cass. 2e civ., 1 March 1995, LawLex202400002249JBJ.

Cass. 2e civ., 19 February 2009, LawLex202300010703JBJ.

Cass. com., 18 January 2000, LawLex202400002253JBJ.

Cass. 3e civ., 31 January 1990, LawLex202400002252JBJ. - Cf. Cass. 1re civ., 23 June 1987, LawLex202300014841JBJ, which specifies that the party who has withdrawn their appeal is no longer admissible to file a new one against the same challenged decision, unless the appeal to the Court of Cassation is not available against it.

4. Proceedings before the Court of Cassation

28. Withdrawal

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28. Withdrawal

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