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 procedure with mandatory representation and the procedure without mandatory representation are governed by common provisions regarding the bench formation to which the case is assigned, the investigation of the case, the organization of the proceedings, and the judgment rendered by the Court of Cassation.

Thus, according to Article 1011 of the Code of Civil Procedure, “except in the case of forfeiture provided for in Article 978, the case is assigned as soon as the claimant has submitted their brief and, at the latest, upon the expiration of the time limit set for this purpose.” Articles 1012 and 1013 specify the composition of the bench to which the case is assigned. First, “the president of the bench to which the case is assigned appoints a judge (conseiller) or a junior judge (conseiller référendaire) of this bench as rapporteur” (Art. 1012, para. 1, CPC) and “may immediately set the date of the hearing” (Art. 1012, para. 2, CPC). Furthermore, “apart from cases where the chamber rules in a restricted formation, the president may, particularly when the complexity of the case justifies it, appoint two rapporteurs from among the judges or junior judges” (Art. 1013, para. 1, CPC).

Furthermore, Article 1012, paragraph 3, of the same code allows the president of the bench to which the case is assigned, after obtaining the parties' agreement, to appoint a mediator to hear the parties and confront their viewpoints to enable them to find a solution to the conflict between them, in accordance with Article 131-1 of the same code. In such a case, the decision ordering mediation is made after the filing of pleadings, if applicable, after the opinion of the public prosecutor, and the president of the bench sets the duration of the mediation in accordance with Article 131-3 of the same code, considering the date of the hearing he has set (Art. 1012, para. 3, CPC). Article 1014, paragraph 3, of the same code specifies that “the restricted bench is competent to approve the agreement report in accordance with Article 131-12 or to terminate the mediator's mission in accordance with Article 131-10.”

Certain cases may also require a thorough investigation. In this case, the president of the bench to which the case is assigned holds, before the report is filed, an investigative session attended alongside the president by the section dean(s), the designated rapporteur(s), the advisors and référendaires chosen by the chamber president, and finally the advocate general(s) (Art. 1013, para. 2, CPC).

Articles 1014 to 1015-1 then specify the role of the formation of judges to which the case is assigned. First, “after the filing of submissions, this formation decides that there is no need to rule by a specially reasoned decision when the appeal is inadmissible or when it is clearly not likely to lead to cassation” (Art. 1014, para. 1, CPC) and “any formation may also decide not to respond in a specially reasoned manner to one or more inadmissible grounds or those that are clearly not likely to lead to cassation” (Art. 1014, para. 2, CPC). Furthermore, “when it is envisaged to raise ex officio one or more grounds, to dismiss a ground by substituting a purely legal reason raised ex officio for an erroneous reason, or to quash without referral, the president of the panel or the rapporteur(s) inform the parties and invite them to present their observations within the time limit they set” (Art. 1015, para. 1, CPC) and “the same applies when it is envisaged to rule on the merits after cassation. In this case, the president of the formation or the rapporteur(s) specify the parts of the operative part of the contested decision that may be affected by cassation and the points on which it could be ruled on the merits. If necessary, they may ask the parties to disclose, in compliance with the adversarial principle and according to the modalities they define, any document useful for the decision on the merits envisaged” (Art. 1015, para. 2, CPC). When conducting the investigation of the case assigned to it, the chamber may also seek the opinion of another chamber seized on a point of law within its jurisdiction (Art. 1015-1, para. 1, CPC). In this case, the Advocate General and the parties are informed by the president of the chamber seized of the appeal, and they may then present observations before the chamber called to give its opinion (Art. 1015-1, para. 2, CPC). Article 1015-1, paragraph 3, of the same code, specifies that the rapporteur of the formation responsible for ruling on the appeal attends the deliberation of the formation responsible for giving the opinion, and the rapporteur of the formation that gave the opinion attends the deliberation of the one responsible for ruling on the appeal. The Court of Cassation may also invite any person whose expertise or knowledge is likely to usefully enlighten it on the solution to be given to a dispute to produce general observations on the points it determines (Art. L. 431-3-1 COJ), who may make written observations, which are then communicated to the parties, or be heard during a hearing to which the parties are summoned, these parties then having a period to present their written observations (Art. 1015-2 CPC).

The rules governing the conduct of proceedings are set out in Articles 1016 to 1019 of the same code. Article 1016, para. 1, of the same code establishes the rule of public proceedings, except in cases where the proceedings take place or continue in chambers “if their publicity would result in an invasion of privacy, or if all parties request it, or if disturbances arise that could disrupt the serenity of justice.” In accordance with Article 1017, “the report is presented at the hearing.” After the report, the lawyers are heard if they request it, and the parties as well after being authorized by the president (Art. 1018 CPC). The proceedings conclude with the opinion of the Public Prosecutor's Office (Art. 1019 CPC).

Articles 1020 to 1022-1 relate to judgments rendered by the Court of Cassation. First, the judgment refers to the rule of law on which the cassation is based (Art. 1020 CPC) and is signed by the president, the rapporteur(s), and the court clerk (Art. 1021 CPC). Article 1022 specifies that “a copy of the judgment is sent to the court from which the challenged decision originates,” and Article 1022-1 provides that “in cases where the parties are exempt from the requirement of counsel at the Council of State and the Court of Cassation, cassation decisions are notified by the Court of Cassation's registry by registered letter with acknowledgment of receipt; decisions of dismissal or cassation without referral are communicated by simple letter to the parties who are not assisted or represented by counsel at the Council of State or the Court of Cassation.”

4. Common provisions for proceedings with or without mandatory representation