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 614 of the Code of Civil Procedure, “the admissibility of the pourvoi incident (cross appeal in Court of Cassation) even if “provoked”, is subject to the rules governing that of the appel incident (cross-appeal in the Court of Appeal), subject to the provisions of Article 1010.” In other words, in accordance with Article 548 of the same code, the cross-appeal may be incidentall …

Cross-appeal in cassation

Pursuant to Article 614 of the Code of Civil Procedure, “the admissibility of the pourvoi incident (cross appeal in Court of Cassation) even if “provoked”, is subject to the rules governing that of the appel incident (cross-appeal in the Court of Appeal), subject to the provisions of Article 1010.” In other words, in accordance with Article 548 of the same code, the cross-appeal may be incidentally raised by the respondent to the appeal both against the appellant and against the other respondents to the appeal and, according to Article 549, it may also originate, on the principal or “incidental” appeal that provokes it, from any person, even if not summoned, who was a party in the first instance. In this latter case, the appeal is provoked . Since the principal appeal could alter the situation of the appellant in the provoked appeal, the latter has an interest in appealing, and the provoked appeal is admissible . However, employees who are not respondents to the principal appeals cannot file a cross-appeal .

In all cases, the instigator of the pourvoi incident must have an interest in the annulment of one of the provisions of the challenged decision . Since the principal appeal is not likely to alter the rights of the applicants for the provoked appeal (pourvoi provoqué), the latter is inadmissible . Thus, the applicant who has filed a principal appeal is inadmissible to file a provoked appeal against the same decision , just as the applicant who has filed a cross-appeal is inadmissible to subsequently file a principal appeal against the same judgment . Moreover, the inadmissibility of the principal appeal results in the inadmissibility of the cross-appeal filed after the expiration of the time limit to act as principal , the withdrawal of the author of the principal appeal being irrelevant .

Article 1010, para. 1, establishes the rule that “the cross-appeal [in cassation], 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” . According to para. 2, it must also, on pain of inadmissibility raised ex officio, be submitted to the Court of Cassation registry before the expiration of the deadline for submitting the response brief  and, furthermore, be notified within the same period to the lawyers of the other parties to the cross-appeal. This provision specifies that “if, in matters where representation is mandatory, the defendant 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 defendant instructs counsel before the service of the brief, notification is made to their lawyer.” Finally, under para. 3, “the defendant to such an appeal has a period of one month from the notification to submit, and if necessary notify, their response brief.” Failing this, the late response brief to the cross-appeal is inadmissible .

Article 621, in fine, states that “the defendant who has not filed a cross-appeal or provoked appeal against the contested judgment within the time limits set by Article 1010 is no longer admissible to appeal against this judgment as the principal party.”  The Court of Cassation emphasizes that if the avenue for appeal to the Court of Cassation is not yet open when a first appeal has been filed, Article 621 is not applicable, so that a second appeal may be filed, in the forms and time limits provided for this purpose, whether or not a decision of inadmissibility of the first appeal has been issued at the time the second appeal was declared .

Cass. 3e civ., 23 May 2012, LawLex202400002444JBJ: pursuant to Articles 549, 614, and 1010 of the Code of Civil Procedure, the provoked appeal filed, within the time limit for the defense brief, by a defendant against a co-defendant with respect to whom the principal claimant has previously withdrawn, is admissible; Cass. com., 23 March 2010, LawLex202200005598JBJ: the provoked appeal can only be initiated by the principal claimant when it results from the incidental appeal filed by the defendant, which is not the case for the provoked appeal that challenges the points of the judgment already addressed by their principal appeal.

Cass. 1re civ., 12 January 1999, LawLex202400002430JBJ.

Cass. 2e civ., 4 December 2003, LawLex202400002367JBJ: the cross-appeal is subject to the time limit set for the filing of the response brief, including when this has been interrupted by a request for removal from the docket, and then resumed from the notification of the re-registration of the case on the docket, whether it was filed before or after the notification of the re-registration order.

Cass. 2e civ., 1 September 2016, LawLex202400002440JBJ.

Cass. 2e civ., 24 February 2000, LawLex202400002433JBJ; Cass. 3e civ., 7 December 2005, LawLex202400002434JBJ; Cass. soc., 31 May 2012, LawLex202400002453JBJ; 19 June 2013, LawLex202400002451JBJ: where the Court of Cassation declares the principal appeal on a point of law inadmissible, the party who brought it is no longer entitled to lodge a cross-appeal against the same ruling, except in the case provided for in Article 618 of the Code of Civil Procedure.

Cass. soc., 16 June 2004, LawLex202300014849JBJ, holding that where a provoked appeal is lodged, in the same proceedings, under the formal requirements and time limits set out in Article 1010 of the Code of Civil Procedure, against a decision not open to immediate appeal independently of the decision on the merits, that appeal is admissible, even if it is directed against a decision other than the one for which the principal appeal seeks reversal.

Cass. soc., 8 December 2016, LawLex202400002449JBJ.

Cass. 2e civ., 19 November 1986, LawLex202400002432JBJ.

Cass. com., 12 October 2010, LawLex202400002447JBJ.

Cass. 3e civ., 27 March 1996, LawLex202400002437JBJ; 10 December 2003, LawLex202400002435JBJ; Cass. soc., 12 January 2016, LawLex202400002450JBJ.

Cass. 3e civ. 11 May 1988, LawLex202400002436JBJ; Cass. 2e civ., 9 October 1996, LawLex202400002431JBJ.

Cass. com., 11 June 2002, LawLex202400002438JBJ; Cass. civ. 2e, 10 July 2008, LawLex202400002441JBJ; Cass. soc., 20 January 2010, LawLex202400002452JBJ; Cass. 2e civ., 20 October 2011, LawLex202400002443JBJ; Cass. soc., 24 October 2012, LawLex202400001764JBJ; Cass. com., 4 June 2013, LawLex202400002445JBJ; 10 February 2015, LawLex202400002446JBJ.

Cass. 2e civ., 1 March 1995, LawLex202400002249JBJ; Cass. com., 24 September 2013, LawLex201300001416JBJ: a cross-appeal filed by a defendant after the notification by the appellant of a simple withdrawal of the principal appeal filed against them is inadmissible; 29 September 2015, LawLex202400002448JBJ: pursuant to Articles 614 and 1010 of the Code of Civil Procedure, a cross-appeal filed after the expiration of the time limit for bringing a principal action, by a defendant against whom the principal appellant has previously withdrawn, is not admissible.

Cass. civ. 2e, 20 May 2020, No 16-17.092, LawLex202400002442JBJ.

4. Proceedings before the Court of Cassation

32. Cross-appeal in cassation

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

32. Cross-appeal in cassation

Demandez un accès gratuit au contenu exclusif Livv – juristes d’entreprise

Les décisions de justice citées dans ce paragraphe :

Les notions juridiques connexes

Demandez un accès gratuit
au contenu exclusif Livv – juristes d’entreprise