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

When the applicant does not demonstrate having enforced the decision subject to appeal, the first president or their delegate may, except in matters where the appeal prevents the enforcement of the challenged decision, decide, at the request of the respondent and after obtaining the opinion of the public prosecutor and the observations of the parties, to remove a case from the register (or docket) unless it appears that enforcement would result in manifestly excessive consequences  or that the applicant is unable to enforce the decision (Art. 1009-1, para. 1, CPC) .

According to the Court of Cassation, removal from the register is neither a sanction for lack of diligence nor for any inadmissibility, but an administrative and regulatory measure intended to emphasize the extraordinary nature of the appeal to the Court of Cassation and to ensure that the beneficiary of an enforceable judicial decision fully enjoys the prerogatives recognized by the trial courts, in accordance with the fundamental rules of judicial organization . Removal from the docket can only be decided at the request of the respondent , which must, under penalty of inadmissibility pronounced ex officio, be submitted before the expiration of the deadlines for filing defense submissions prescribed in Articles 982 and 991, depending on whether the procedure requires mandatory representation (para. 2) . The measure of removal from the docket, which is only provisional in its effects and preserves all rights, remedies, and means, can thus be requested as soon as the notice of appeal to the Court of Cassation has been filed with the court registry, without having to wait for the expiration of the deadlines for filing submissions in support or in defense . Furthermore, Article 1009-1 cannot be applied to an appeal filed against the civil provisions of a decision rendered by a criminal court .

Removal from the register interrupts the time limits for filing the defense brief as provided by Articles 982 (in the case of proceedings with mandatory representation), 991 (in the case of proceedings without mandatory representation), and 1010 (in the case of filing a cross-appeal or provoked appeal), but does not suspend the time limits allotted to the appellant for filing their supplementary brief under Articles 978 and 989, depending on whether the procedure is with or without mandatory representation (Art. 1009-1, paras. 3 and 4, CPC). Furthermore, it prohibits the examination of principal and cross-appeals. According to the Court of Cassation, the measure of removal from the docket prescribed by Article 1009-1 of the Code of Civil Procedure does not confer, on the one who ordered it, the power to impose a penalty . However, when the removal from the docket of a case has been decided and as long as its re-registration has not been authorized due to the lack of justification for the enforcement of the contested decision, the First President of the Court of Cassation, who also has the power to acknowledge the withdrawal or forfeiture of the appellant, also has the power to resolve incidents that may arise during this phase of the procedure and, if necessary, to draw consequences regarding a possible continuation of the proceedings .

Article 1009-2, para. 1, provides that “the period of peremption runs from the notification of the decision ordering the removal” . This notification must be made in person . The same text specifies that it is interrupted by an act unequivocally demonstrating the intention to execute, and the first president or their delegate may, even ex officio, after inviting the parties to present their observations, declare the peremption (para. 2).

Finally, under the terms of Article 1009-3, the first president or their delegate authorizes, unless they find the proceedings barred by peremption, the re-registration of the case on the Court's docket upon proof of the enforcement of the contested decision (para. 1) . If an enforcement of the contested decision within the meaning of Article 1009-3, even partial, can sometimes suffice to allow the re-registration of the proceedings on the Court of Cassation's docket, it is on the condition that it reveals, with regard to the situation of the parties concerned, their unequivocal intention to comply with the trial court's decision . Finally, the time limits granted to the repondent by Articles 982 and 991 run from the notification of the re-registration of the case on the docket (para. 2) .

Cass., ord. Premier président, 20 December 1995, LawLex202400002380JBJ: since the enforcement of the Court of Appeal's decision would result in manifestly excessive consequences for the applicant, there is no reason to remove the appeal from the Court of Cassation's docket; 21 May 1997, LawLex202400002383JBJ, considering that the eviction of a company from the premises where it conducts its business would result in irreversible consequences for it; 23 May 2001, LawLex202400002387JBJ: there is no reason to remove from the Court of Cassation's docket the appeal of parties against a decision that terminated their lease and ordered their eviction, as this measure would have manifestly excessive consequences for them given their age. - Also see, Cass., ord. Premier président, 2 May 2001, LawLex202400002374JBJ, considering that it is appropriate to stay proceedings regarding the request for removal from the docket pending the decision of the over-indebtedness commission, when the applicant for the appeal justifies having made a declaration of over-indebtedness; 23 May 2001, LawLex202400002389JBJ, specifying that when there has been a removal from the docket, but the examination of the merits of the appeal cannot be separately assessed, it is appropriate to order its reinstatement for the proper administration of justice, except where it would infringe on the principle of equality of the parties in the proceedings.

Cass., ord. Premier président, 29 September 1993, LawLex202400003871JBJ: there is no reason to remove from the docket the appeal filed by a company against a ruling that ordered it to pay various sums, when a subsequent judgment has initiated judicial recovery proceedings against it, as this judgment automatically prohibits the company from paying any debt incurred previously, and it is therefore legally unable to enforce the contested ruling; 17 December 1993, LawLex202400003872JBJ: it is appropriate to remove from the docket of the Court of Cassation the appeal filed by a company against a ruling that ordered it to pay various sums, when a subsequent judgment has initiated judicial recovery proceedings against it, if the judicial representatives do not demonstrate that they have taken the necessary steps with the ASSEDIC to ensure that this organization advances the sums set by the contested ruling.

Cass., ord. First President, 23 April 2003, LawLex202400002386JBJ.

Cass., ord. Premier président, 9 May 2001, LawLex202400002376JBJ: it is appropriate to authorize the reinstatement on the docket of the Court of Cassation of the appeal against a judgment ruling on a dispute between two companies, since the previous decision on the jurisdiction of the French courts has just been overturned by the Court and requiring the enforcement of the second judgment as a condition for the effective exercise of the appeal to the Court of Cassation against it would lead to consequences disproportionate to the purpose of the provisions of Article 1009-1 of the Code of Civil Procedure, in contradiction with the requirements of Article 6.1 of the European Convention on Human Rights; 23 May 2001, LawLex202400002388JBJ: it is appropriate to authorize the reinstatement of the appeal on the docket of the Court of Cassation since maintaining the removal from the docket would delay the examination of the appellant's appeal for such a duration that the regulatory measure it constitutes would have consequences disproportionate to its purpose.

Cass., ord. First President, 9 May 2001, LawLex202400003916JBJ.

Cass. 2e civ., 4 December 2003, LawLex202400002367JBJ: the time limit for submitting the response brief, having been interrupted by the application for removal from the docket, begins to run again from the notification of the re-registration of the case on the docket.

Cass., ord. Premier président, 21 December 1993, LawLex202400002381JBJ; 7 February 1995, LawLex202400002375JBJ; 22 February 1995, LawLex202400002384JBJ; 14 March 1995, LawLex202400002379JBJ; 30 April 1997, LawLex202400002390JBJ.

Cass., ord. Premier président, 30 April 1997, LawLex202400002390JBJ; Cass. soc., 4 May 1999, LawLex202400002372JBJ, noting that the respondent who, in their defense brief, requests the Court of Cassation to remove the appeal from the docket until the plaintiff has justified the enforcement of the Court of Appeal's decision, must see this bar to proceedings rejected, since, in reality, intending to rely on the non-enforcement of the decision, they should have referred the matter to the First President of the Court of Cassation in accordance with the provisions of Article 1009-1 of the Code of Civil Procedure; 7 June 2000, LawLex202400002373JBJ: the respondent cannot invoke the inadmissibility of the appeal under Article 1009-1 of the Code of Civil Procedure on the grounds that the plaintiff has not enforced the decision under appeal, since the sanction provided by this text is not the inadmissibility of the appeal, but the removal from the docket decided by the First President at the respondent's request.

Cass., ord. First President, 14 February 2001, LawLex202400002378JBJ.

Cass., ord. Premier président, 21 December 1993, LawLex202400002381JBJ; 7 February 1995, LawLex202400002375JBJ; 22 February 1995, LawLex202400002384JBJ; 14 March 1995, LawLex202400002379JBJ.

Cass., ord. 10 May 1993, LawLex202400002377JBJ.

Cass., ord. First President, 8 November 1993, LawLex202400002391JBJ.

Cass., ord. Premier président, 8 November 1993, LawLex202400002391JBJ: the order for removal from the docket by the First President of the Court of Cassation does not interrupt the peremption period; 21 February 2002, LawLex202400002369JBJ: the limitation period for a defamation action, suspended by the appeal to the Court of Cassation, resumes from the notification of the order for removal from the docket issued pursuant to Article 1009-1 of the same code; Cass. 3e civ., 20 January 1999, LawLex202400002371JBJ, specifying that the decision ordering removal from the docket starts the peremption period, with regard to the diligence required of the claimant to obtain the re-registration of the case.

31. Removal from the register