On 18 November 2016 the Law on the Modernisation of Justice, which entered into force on 1 September 2017, reformed French civil procedure in order to (among other things) harmonise the time limits for appeals and redefine the subject matter of appeals.
On 6 May 2017 an implementing decree on appeals in civil matters specified the rules relating to a plea for lack of jurisdiction. Under this decree, the legislature simplified the appeal of judgments rendered by the first-instance courts ruling solely on procedural issues relating to lack of jurisdiction.
However, the decree created uncertainty concerning the correct proceeding to be applied before the appeal courts for cases regarding lack of jurisdiction, as the courts disagreed on that topic.
On 11 July 2019 the Supreme Court ruled on this matter, thus ending the conflict between the appeal courts.
The 6 May 2017 decree removed the former proceeding concerning lack of jurisdiction matters and replaced it with a common procedure which applies to any first-instance court's decision ruling exclusively on the issue of jurisdiction: the fixed-date procedure. This procedure sets out that the appellant must appeal to the first president of the appeal courts within 15 days of notification of the first decision in order to be authorised to summon the other party on a fixed date (Article 83 of the Code of Civil Procedure).
The removal of the old proceeding was seen as a simplification; however, it has given rise to unanticipated difficulties.
In particular, questions were raised regarding which regime should be applied to orders rendered by:
- the judge with jurisdiction to examine urgent matters and which may grant a provision to a creditor when their demand is not facing serious challenge; and
- the pre-hearing judge with the power to rule over means of defence regarding lack of jurisdiction.
Scholars and judges were divided on the subject.
Some judges considered that Article 83 and following of the Code of Civil Procedure should apply only to decisions that were subjected to the old proceeding (ie, to judgments and not to orders rendered solely by the judge) and that Article 905 and following of the Code of Civil Procedure (ie, specific rules applicable to appeal proceedings towards orders that have been rendered by the pre-hearing judge) should apply to the pre-hearing judge's orders.(1)
On the contrary, some judges considered that the term 'judgment' (used in the new provisions of Article 83 and following) was a general term intended to apply to any type of decision – including orders rendered by the judge or the pre-hearing judge – in which the judge rules on jurisdictional issues.(2)
Hence, the 11 July 2019 decision rendered by the Supreme Court was doubly welcome. The second civil chamber of the court has taken the same position on the issue, considering that the appeal procedure provided for in Article 83 and following of the Code of Civil Procedure will apply:
It follows from Articles 83, 84 and 85 of the Code of civil procedure that, notwithstanding any contrary provision, the appeal against any first instance court's decision on jurisdiction without ruling on the merits is subject, when the parties are required to be represented by a lawyer, to the fixed day procedure, and in such case, the appellant must seize, within the delay of appeal, and under penalty of being declared void, the first president of the court of appeal in order to be allowed to summon the respondent on a fixed day.
It is now clear that for any decision rendered exclusively on a jurisdictional issue, the party that wants to appeal such decision must file a motivated statement for appeal and, more importantly, appeal to the first president of the relevant appeal court through a formal request in order to obtain a fixed date on which the case will be heard.
Otherwise, the statement of appeal will be declared void.
The Supreme Court decided to take the position of procedural coherence, rather than continuing to enforce the law as it was previously established.
The question is now whether this fixed-date procedure will keep its promise and truly enable a procedural simplification.
This article was first published by the International Law Office, a premium online legal update service for major companies and law firms worldwide. Register for a free subscription.