on June 27, 2017 – AP UP – Right
By Roger Tudela, lawyer at the bar of Lyon, france and Brussels, a member of Avocap Europe, former president of the regional Company of Solicitors at the Court of appeal of Lyon. With the kind contribution in its field of competence
Me Frédéric Rocheteau, lawyer at the Council of State and Court of cassation.
The speed of modern communication led to the publication of quick scans from the publication of a new text. This is the case of the decree of 6 may 2017 ” relating to the exceptions of lack of jurisdiction and the appeal in civil matters “, on which prominent personalities have already published relevant comments (1).
The importance of the reactions provoked by this text is the height of the dramatic changes that he will bring to the appeal procedure. All are not visible at the first reading. If the procedure is going to be upset, what does that say about our practice that will have to quickly adapt to the risk of penalizing in an irreversible way our customers…
The appeal procedure is transversal to all areas of private law, it is essential to inform all practitioners on the risks involved.
They will have to define the most appropriate methods to avoid the pitfalls that, once again, the mexican place on the way to the call.
Why the legislature has not-he ceases that complicate this procedure ?
Is it a desire to accelerate the procedures and facilitate the decision-making legal ? We would like to believe it, but complicate the task of the lawyers has never improved the situation of the litigants they represent.
Perhaps you remember that the lawyer is a partner, an auxiliary of justice, and that it should not be the scapegoat of an institution in difficulty.
This article has not the pretension of an in-depth legal analysis, but wants to determine the practical implications of a text that will apply in less than three months (2).
This text is the continuation of the reform of 2009 so-called “reform Magendie” that the profession finished just absorb…
As we have often indicated, this initial text was ” a tool that comes unfinished and without a manual.”
It took nearly five years and many accidents, to procedural, to define the main lines of application of force of legal precedents are opposed, and of the opinion of the court of Cassation (3).
While the horizon procedural began to clear, comes this new reform, whose purpose other than to reduce the number of appeal procedures is to find.
Judge better and faster could be the reason cardinal of such an upheaval.
This new text is to be accomplished ? A draft response will be advanced to the end of this reflection.
I/ FIELD Of APPLICATION
This is an in-depth reform of the appeal procedure as on the very notion of this remedy, (a real revolution) as the means of implementing it.
/ A revolution : the subject of The appeal
I would not take again the debate on the call being completed and the call path of reformation that has been confronting the proponents of these two poles for almost 50 years.
The first wished that the dispute will be definitely settled at the appeal stage, while for the latter, it was not necessary to repeat in case of appeal the proceedings of first instance.
Only the critical judgement needed to be addressed. The concentration of the claims that the Court of Cassation had spent, as of 2006, in the judgment Cesareo was the culmination of this process (4).
The call path completion was, however, still dominant in the so-called reform MAGENDIE.
But must we choose between one or the other ? The search for a balance point, would it not be preferable ?
It is perhaps through this reading grid that will be examined by the decree of 6 may 2017.
B/ the declaration of appeal
If the terms of the definition of the appeal have not changed, in that it tends to the reformation or the cancellation of a judgment, on the other hand, the amendment to article 542 of the code of civil procedure (CPC), is without ambiguity. Slip a few words that guide unquestionably the lawyer.
Art-542 : the call tends, by the criticism of the judgment rendered by a court of first instance, to its reformation or its cancellation.
The change is all the more important that the appellant is compelled to register as of the statement of appeal, the heads of the judgment which it criticises.
Article 13 of the decree amending article 901 of the code of civil procedure, states that the appeal is not eligible to be referred more to the Court that “the heads of the judgment specifically criticized” that will be required under penalty of nullity, be included in the statement of appeal (5).
It is a real change of paradigm because, except in the general appeal of a decision can no longer be accepted.
The statement of appeal thus takes a key place in that it will determine the limits of the debate before the Court.
Litigants and lawyers, applicant and trial, so will have to take the time to work together to define precisely the purpose of the call.
Even more complex is the new appeals procedure in matters of jurisdiction, since the new article 85 of the CPC requires that motivate the call (6).
Past the obstacle of the statement of appeal, comes the first findings.
C/ the preliminary conclusions
Their form is imposed by the new text and the time limits for the deposit will vary depending on the nature of the decision.
It is they who will decide the terms of the debate before the Court, so take this as a paramount importance.
(a) The new deadlines for the conclusion
The changes are few but you have to know them as they are prescribed under penalty of nullity or inadmissibility.
In the framework of a regular appeal, if the appellant has a period of 3 months to conclude, on the other hand, the time period for the respondent is increased by one month he spent 2 to 3 months of the date of notification of the conclusions of the appellant. One of the few points favorable to the practitioner. In the event of an appeal on the jurisdiction, the claim must be filed at the same time as the statement of appeal if it is not motivated.
Whether emergency procedures like the one of section 905 of the CPC or reference after cassation, the procedure hardens. In both cases, no time limit was imposed by the texts, that the Court of cassation has confirmed in its opinion of June 3, 2013 (7).
The lawyers were then required by the schedule of procedure.
This time is over since tomorrow whether the emergency procedure or reference after cassation of the reduced time limits are imposed, under penalty of being declared void or inadmissible.
In the framework of the procedure governed by section 905 of the CPC, the appellant and respondent would each have a one-month deadline to file their conclusions, the caller after the communication by the registry of the ordinance imposing this procedure within a short time.
The references after a cassation appeal if they have a system a little more friendly, should, nevertheless, be concluded within two months of the referral to the court of reference, this same delay is also requiring all other parties to the proceeding.
(b) The form of the conclusions
The movement to impose on lawyers a model for their conclusions has not ceased to advance each reform. This one is no exception.
A new paragraph of section 954 requires that the conclusions include separately a statement of facts, the statement of the heads of the judgment criticized, a discussion of claims and means, as well as a device for summarizing the claims. This structuring of the scriptures which is now needed has the objective to clarify the debate as much as the same section 954 requires the display of formally separate any means new (8).
Recall that the Court only adjudicates on the claims set out in the scheme, and considers the means to support these claims that if they are invoked in the discussion (9) ;
(c) The concentration of claims
The careful reading of the article 910-4 limit of the fears you could have about it. Indeed, as was pointed out very aptly Jacques PELLERIN (10) are not concerned by this concentration that the claims and not the means so that it will be possible beyond the first conclusions to present parts or new means (11).
The sanction of this defect concentration is a inadmissibility raised by the office, which can also be represented by the party against which are formed in the further claims.
II the conduct of the proceedings
The ordinary procedure that has not undergone a slight modification to the response time of the respondent (three months instead of two) it is therefore on the specific procedures that we will stop.
To/ the procedure within a short time frame
This is to my mind in this context that we will find the most important change in the provisions of the new articles 904-1, 905-1 and 905-2 of the code of civil procedure.
It is primarily an extension of the scope of application of this procedure to orders made in chambers, and the appeal of the decisions of the judge of the execution.
The choice to fix the matter in a short time belongs to the president of the chamber to which the case is distributed, the parties being notified by the registry.
This opinion is important because it will run of the limited time-frame to the penalty of caducity relieved of office.
It is first and foremost a period of ten days from the receipt of the notice to notify the statement of appeal that the respondents failed.
It is, finally, a period of one month to submit to the registry the conclusions of the appeal.
The respondent will have for him the same time limit of one month to file its own scriptures.
B/ appeal in terms of jurisdiction : the former procedure contradicts
This is a major innovation since the procedure of the dispute note is deleted.
This is the appeal process that will apply to the contestation of judgments that decide on the jurisdiction.
This procedure will, however, be distinguished from the ordinary procedure to satisfy the desire for speed that requires a challenging device to the merits of the dispute.
It is in a period of 15 days from the date of notification (12) the judgment must be registered for the call. This is no longer the date of the decision, which will be the starting point of the time limit for the appeal and it is a good thing.
On the other hand, the same article requires the caller to enter the First president of a query for the purpose of obtaining the benefit of a fixed day, within the appeal period under penalty of being declared void. I confess I do not understand this additional constraint imposed on the appellant who, on account of the short periods of time, must submit a request to the First President at the same time as the call.
The First president will have no latitude to opportunity to grant or not the benefit of this procedure that was mandatory.
Therefore, one can legitimately ask why this obligation when it would have been simpler to predict the automaticity of a process on a fixed day.
Judges and lawyers may benefit from a time-saving without affecting the follow-up procedural.
C/ The referral after cassation
It is useful to recall that the national court must be entered by a declaration at the registry, except to specify that the decree of may 6, imposes the referral electronically, thus confirming the case law of the Court of cassation (13).
The deadline for doing so is reduced by half, since section 1034 of the code of civil procedure imposes a maximum period of two months from the notification of the ruling by the supreme court.
While no other constraint than that of the calendar procedure is only necessary for lawyers, the new texts (14) to impose to the Court of appeal the rules of the procedure promptly (see above).
The result is that it will be the responsibility of the author of the declaration of referral to be served on the other parties to the proceeding, the notice of attachment within 10 days of its notification by the registry, of course, under penalty of nullity raised by office (15).
A time limit for the conclusion is also imposed in the area, it is 2 months from the declaration (16).
A same time of two months from the notification of these scriptures is open to other respondents.
The article 1037-1 does not expressly provide for any sanction in case of late filing of the findings of the attaching party, and other parties to the proceeding.
Only those forced or voluntary are subject to a time limit of 2 months to sentence of inadmissibility of office.
Should it be inferred that the parties may free themselves from any time period other than the calendar of the procedure ?
Certainly not. Dedicating the constant jurisprudence of the Court of cassation, paragraph 6 of new article 1037-1 provides that parties that do not comply with the time limit to conclude before the referring court are deemed to stick to the ways and claims that they had submitted to the Court of appeal, whose judgment had been broken.
This is equivalent to assuming that, except for new matter, the terms of the debate before the Court making the reference are the same as before the court of appeal in which the judgment was broken.
It also follows that a party would not have concluded before the Court of reference must be permitted to plead in the light of the submissions filed during the appeal previous.
If the standard procedure has not specially attracted our attention, it is nevertheless useful to clarify a few points of practical importance.
This is for example the last paragraph of section 954 new code of civil procedure, which adds a phrase important to the ancient text, which, again, still shows today :
“The party who, without referring to new ways, asking for confirmation of the judgment shall be deemed appropriate grounds “.
Effective September 1, this paragraph will be replaced by :
“The part that does not enter into, or without the state of new submissions, request the confirmation of the judgment shall be deemed appropriate grounds “.
This should rejoice the respondents who were not able to conclude within the time limits imposed. They can nonetheless support bar the confirmation of the judgment by ownership patterns.
Other measures, peeling mixes come spend the jurisprudence of often the most severe to punish parties who have not concluded on time.
It is as well that the article 910-1 returns on the opinion of the Court of Cassation of 3 June 2013 (17) by excluding from the definition of the findings required under articles 908 and 909, ” the findings raising an incident of a nature to put an end to the proceedings “. Tomorrow, only the findings that determine the subject matter of the dispute, the conclusions at the bottom, will meet this requirement.
In the same spirit is devoted to the case-law which prohibits a second call to main after the first has been hit sunset, the same title that will be declared inadmissible on the principal appeal brought by a respondent who has not filed an appeal incident at the time or who may have seen this appeal declared inadmissible.
What to think of this text ? I don’t share the point of view of those who are optimistic are pleased to see an attempt to balance modernizing the call to the French ” (18).
I find for my part the additional constraints imposed on the professionals that significantly increases the risk procedural without being able to define the interest.
We know for a long time, judging better, find it more quickly, do not depend exclusively of lawyers, and one would expect the legislature of the Twenty-first century as he examines the real interest of the litigant rather than trying to adjust the flow increased by limiting the number of records of which the Courts of appeal will have to be aware of.
(1) E. JULLIEN GAS PAL MAY 16, 2017 ? J PELLERIN GAS PAL OF MAY 23, 2017)
(2) Article 53 of the decree : Application to the 1st September 2017 unless the exceptions provided for in article 52
(3) as an example of the various opinions of the Court of Cassation Opinion no. 1300003, Opinion no. 1300004, Opinion no. 1300005 January 21, 2013
(4) Cassation ass pl 7 July 2006, n° 04 10672 ; cass 2 civi July 12, 2012 n° 11 20587 ; cass civ 1 1 oct 201 n° 13 22388)
(5) Section 901 al 4 of the code of civil procedure : “.except if the appeal seeks the annulment of the judgement or if the object of the dispute is indivisible “
(6) Article 85 of the CPC, ” the statement of appeal states that it is directed against a judgment ruling on jurisdiction, and must, to be admissible, be motivated, either in the statement itself, or in the conclusions attached to this statement
Opinion of the Court of cassation, 3 June 2013, no. 13-70.004, ” The provisions of sections 908 to 911 of the code of civil procedure are not applicable to the procedures laid down in accordance with the provisions of section 905 of the code.
(8) Article957al 2 in fine : “if in the discussion of the new methods compared to the previous scriptures are relied upon in support of claims, they are presented in a way that formally separate.
(9) art-954 al 3
(10) the Gas of the palace of may 23, 2017 ” the reform of the appeal procedure : what’s new and watches !
(11) article 910-4
(12) article 84 of the CPC
(13) (Civ. 2nd, 1st dec. 2016, n° 15-25.972)
(14) article 1037-1 of the CPC
(15) article 1037-1 paragraph (2
(16) article 1037-1 paragraph (3
(17) Opinion of the Court of cassation, 21 January 2013, n° 12-00.016, ” The findings required under articles 908 and 909 of the code of civil procedure are all those…, which determine the subject matter of the dispute or raise an incident of a nature to put an end to the proceeding “
(18) Jacques PELLERIN gazette du palais article cited above