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 Court of Cassation comprises five civil chambers and one criminal chamber, each chamber consisting of one or more sections and sitting either in full bench, section formation, or restricted formation (Art. R. 421-3, COJ). Pursuant to Article R. 431-2, “the first president determines the responsibilities of each civil chamber by order after consulting the Public Prosecutor,” while “the chamber  …

Functioning of the Court of Cassation

“There is, for the entire Republic, a Court of Cassation” (Art. L. 411-1, COJ). Established by the Law of 27 November 1790, the Tribunal of Cassation became the Court of Cassation in 1804. As a court of law, not of facts, the Court of Cassation's mission is to unify the law by overseeing the interpretation of laws. In this sense, it can be described as a third-degree jurisdiction, even though the scope of its judicial review is limited since it cannot revisit the “sovereign” assessment of facts by the trial courts . As part of its various roles, the Court of Cassation can also question the constitutionality of laws or provide guidance to judges on the interpretation of a new legal question when asked for an advisory opinion. The judges of the Court of Cassation may also participate in other bodies, including certain independent administrative authorities. The first president of the Court of Cassation and the Public Prosecutor may, if necessary, make reform proposals to the President of the Republic or the Minister of Justice to address legal difficulties encountered by the Court. Furthermore, the Court of Cassation engages in international and European cooperation, notably with the ECHR and the CJEU, or other European supreme courts, to foster judicial dialogue and contribute to the creation of a common judicial space in Europe, both bilaterally and through networks in which it participates, such as the European Judicial Network in civil and commercial matters, which it joined in 2020.

The Court of Cassation is the highest court of the judiciary in France, but its status as a supreme court has sometimes been questioned. While it has always shared the pinnacle of the legal order with the Council of State, its equivalent in the administrative order, its case law must align with that of the Court of Justice of the European Union, and pursuant to Article 267 TFEU, it must stay proceedings and consult the latter when faced with a difficulty in interpreting a European text. Empowered to raise priority preliminary rulings on the issue of constitutionality, which it may choose to transmit, the Court of Cassation must also adhere to the interpretation of laws by the Constitutional Council and align its case law accordingly. Furthermore, if a litigant, against whom a final decision regarding personal status has been rendered in violation of the European Convention on Human Rights, decides to petition the Court of Cassation for a civil re-examination, which, pursuant to Article L. 452-1, para. 2, of the Code of Judicial Organization, may also involve an appeal, the Court, sitting in plenary session, must review its decision. However, even in this latter case, the highest court remains the court that ultimately rules on domestic law, so as a “court of last resort,” it deserves the designation of Supreme Court.

Art. L. 411-2, para. 2, COJ: “The Court of Cassation does not review the merits of cases, unless otherwise provided by law.”

The Court of Cassation, a supreme court?

The way the Court of Cassation interprets the law has significantly evolved in recent years. The digitization of data and open data  for which the Court of Cassation is responsible, as well as the restructuring of cassation rulings, have contributed to this evolution.

At the beginning of data digitization, the publication of court decisions was limited to the dissemination of decisions from supreme courts, which represented a tiny fraction of the entire body of case law. Since 2000, the number of decisions made available online has continuously increased, with the “open data” movement, i.e., the opening of data—in this case, case law—reaching its peak. In France, the provision of all publicly rendered decisions by judicial and administrative courts to the public, free of charge and in electronic form, was implemented by Law No 2016-1321 of 7 October 2016 for a Digital Republic  and by Law No 2019-222 of 23 March 2019 on the 2018-2022 programming and reform for justice . Enshrined in Article L. 111-13, para. 1, of the Code of Judicial Organization , the open data of court decisions was accompanied by their “pseudonymization” , meaning a process of concealing personal data, carried out in such a way that data related to a natural person can no longer be attributed without additional information, in compliance with the General Data Protection Regulation (GDPR) 2016/679 of 27 April 2016. The massive dissemination of court decisions undoubtedly facilitates access to the law but also carries a risk of diluting the case law of the Court of Cassation.

At the same time, noting that its method of handling appeals, drafting judgments, and disseminating its case law could appear out of step with the expectations of litigants and the new context of production and dissemination of legal norms, the Court of Cassation established a reflection committee in 2014 tasked with proposing reform perspectives, particularly regarding desirable changes in the reasoning of its decisions, often criticized for their obscurity and difficulty of interpretation. In 2017, a new commission was tasked with developing a project for an operational system, and in 2019, the Court of Cassation published a guide to the new rules applicable to the drafting of judgments. The change in structure and drafting of cassation judgments aims, on the one hand, to make them more intelligible from the reader's perspective by increasing legal certainty, and on the other hand, to facilitate their translation and thus improve their international dissemination. Henceforth, cassation judgments, which no longer contain recitals, consist of numbered paragraphs and have a unique structure divided into three parts: facts and procedure (faits et procédure)," “examination of the grounds (examen des moyens),” and operative part, i.e. ruling (dispositif). The enriched reasoning, for the most important judgments (reversals of case law, new solutions, unification of case law, questioning of fundamental rights etc.), highlights the method of interpretation of the relevant texts adopted by the Court, cites judicial precedents and, where applicable, the alternative solutions dismissed or the impact studies conducted when they played a significant role in the choice of the adopted solution.

In line with the digitalization of the Bulletin of the Court of Cassation and the discontinuation of the Bulletin d’information de la Cour de cassation (BICC), the Court of Cassation has modified the classification and hierarchy of its rulings. Previously, rulings were marked with the letter “P” for those with doctrinal significance published in the Court's Bulletin because they adopted a new solution, marked an evolution, or, conversely, reflected a consistent position of the Court; the letter “B” for those published in the BICC (Bulletin d'information de la Cour de Cassation); the letter “R” for rulings with greater doctrinal significance, analyzed in the annual report of the Court of Cassation; and/or the letter “I” indicating same-day online publication on the Court's website. Since June 2021, the letter “B” has replaced the former “P” for rulings published in the Bulletin of the Court's rulings, while the letter “R” still designates those appearing in the annual report. The letters “L” for “Lettres de chambre” and “C” for “Communiqué,” for internal use by the Court of Cassation, more broadly cover the former “B” and “I.” The classifications “B” or “B/R” are thus the only ones to rank the Court's rulings in terms of their jurisprudential significance, while the markings “ L” or “C” indicate rulings benefiting from broader communication.

Always driven by the desire to reform, the Court of Cassation established a new commission in 2020 tasked with considering its role and functioning over the next ten years, with the mission of examining major trends emerging in its legal, institutional, and international environment. On 5 July 2021, the commission submitted the report “Court of Cassation 2030,” in which it makes 37 recommendations to strengthen confidence in the decision-making process of the Court, open it to external perspectives (for example, by establishing a feedback mechanism), structure the dialogue among judges, enhance the collective intelligence of the Court (notably by ensuring intellectual monitoring of significant societal and legal developments), guarantee the necessary predictability of the law, improve the Court's IT resources, and its communication to make it a more visible, understandable, and accessible Court.

In general, open data, which involves a right of access to documents and information from the administration, is based on Article 15 of the Declaration of the Rights of Man and of the Citizen, which states that “society has the right to hold any public agent accountable for their administration.”

Art. L. 111-13, para. 1, COJ: “Subject to specific provisions governing access to court decisions and their publication, decisions rendered by the Judicial Courts are made available to the public free of charge in electronic form.”

Art. L. 111-13, para. 2, COJ: “The names and first names of natural persons mentioned in the decision, when they are parties or third parties, are redacted prior to being made available to the public. When its disclosure is likely to infringe on the security or privacy of these persons or their entourage, any element allowing the identification of the parties, third parties, judges, and court registry members is also redacted.” Unlike anonymization, which is a process that involves using a set of techniques making it practically impossible to identify the person by any means, pseudonymization is reversible.

Open data and new structuring of Court of Cassation rulings

The Court of Cassation comprises five civil chambers and one criminal chamber, each chamber consisting of one or more sections and sitting either in full bench, section formation, or restricted formation (Art. R. 421-3, COJ). Pursuant to Article R. 431-2, “the first president determines the responsibilities of each civil chamber by order after consulting the Public Prosecutor,” while “the chamber president determines, within each chamber, the number of sections and the rules for distributing cases among them” and “assigns each case to the competent section or decides, if necessary, on its examination in full bench.”

The First Civil Chamber rules notably on: matters of personal and family law, consumer protection, intellectual property, private international law, and arbitration; the Second Civil Chamber: on matters of civil procedure and enforcement, insurance, tort liability, social security, and elections; the Third Civil Chamber: on matters of real estate property, leases, business contracts, construction, and environmental law; the Commercial Chamber: on matters of insolvency proceedings, companies, banking, stock exchange, industrial property, business contracts, and competition; the Social Chamber: on matters of labor law, training, and employee representation; the Criminal Chamber: on matters of crimes, offenses, and infractions.

The chamber constitutes the ordinary formation of judgment, but the Court of Cassation may convene in special contentious formations. Thus, pursuant to Article L. 431-6 of the Code of Judicial Organization, “referral to the plenary assembly may be ordered when the case raises a question of principle, particularly if there are divergent solutions, either among the trial courts or between the trial courts and the Court of Cassation. It must be ordered when, after the quashing of a first judgment or ruling, the decision rendered by the referral court is challenged on the same grounds.” Furthermore, referral to the plenary assembly is mandatory when the Public Prosecutor requests it before the opening of proceedings (Art. L. 431-7, COJ). The plenary assembly is presided over by the First President, or, in the event of their impediment, by the most senior of the chamber presidents and includes the presidents and the deans of the chambers as well as one counselor from each chamber (Art. L. 421-5, COJ).

Similarly, under L. 431-5 of the Code of Judicial Organization, referral to a mixed chamber may also be ordered “when a case raises a question normally within the jurisdiction of several chambers or if the question has received or is likely to receive divergent solutions before the chambers; it must be ordered in the event of an equal division of votes.” The Public Prosecutor may also request the formation of a mixed chamber, pursuant to Article L. 431-7. “When a mixed chamber must be constituted, it is composed of judges belonging to at least three chambers of the court” and “is presided over by the First President, or, in the event of his or her impediment, by the most senior of the chamber presidents”; “it also includes the presidents and deans of the chambers that compose it as well as two counselors from each of these chambers” (Art. L. 421-4, COJ).

The Court of Cassation may also sit in a restricted formation to rule quickly on simple cases. Article L. 431-1 of the Code of Judicial Organization thus provides that cases submitted to a civil chamber are examined by a formation of three judges (instead of five in the ordinary formation) belonging to the chamber to which they have been assigned, who rule “when the solution to the appeal is evident”; “otherwise, it refers the examination of the appeal to the chamber's hearing.”

Among the provisions that the Code of Civil Procedure dedicates to the Court of Cassation, it is necessary to distinguish between the procedure with mandatory representation (Articles 974 to 982, CPC) and the procedure without mandatory representation (Articles 983 to 995 CPC), as well as the request for an advisory opinion (Articles 1031-1 to 1031-7 CPC), the re-examination in civil matters (Articles 1031-8 to 1031-23 CPC), and the incidents including withdrawal, challenge for bias, claim of forgery, removal, or the formation of cross-appeals (Articles 1024 to 1031 CPC).

4. Proceedings before the Court of Cassation

3. Functioning of the Court of Cassation

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Les notions juridiques connexes

3. Functioning of the Court of Cassation

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