Procedural strategy is a subtle art. For those who wish to defend their interests effectively, the legal arsenal offers three types of defence: defences on the merits, pleas in bar and procedural objections. Each of these is subject to distinct rules governing both admissibility and merits. This distinction between admissibility and admission reveals a procedural mechanism that is often misunderstood.
1. Objective conditions of eligibility
Common rules with variable geometry
The rules governing procedure generally apply to all defences, as set out in article 72 of the Code of Civil Procedure for defences on the merits and article 123 for pleas in bar. A noteworthy decision of the Cour de cassation (Civ. 1re, 17 March 2016, no. 15-13.765) confirms this identity of regime as regards the provisions relating to pleadings.
The judge's jurisdiction, on the other hand, marks a notable difference. Decree no. 2019-1333 of 11 December 2019 has considerably altered the procedural landscape by extending the jurisdiction of the pre-trial judge to include pleas of inadmissibility, previously limited to exceptions. This recent development means that a distinction can now be drawn between defences on the merits on the one hand, and exceptions and pleas of inadmissibility on the other.
Conditions specific to exceptions
The specificity of objections lies in their restrictive regime as to when they may be raised. Article 74 of the Code of Civil Procedure requires that they be raised before any defence on the merits and any plea of inadmissibility, and at the same time. This requirement is designed to prevent delaying tactics.
Case law interprets this rule with some flexibility. Thus, according to the Cour de cassation (Civ. 3e, 8 March 1977, no. 75-14.834), the presentation of objections and other pleas in law in the same set of submissions is possible, provided that the discussion on the merits appears to be subsidiary.
The principle is subject to certain adjustments in the case of the pleas of nullity on grounds of formal defects and of lapse of time (art. 112 CPC), which must be raised before any defence on the merits or plea of inadmissibility, but not necessarily in limine litis.
And there are exceptions for the exceptions of connexity and nullity on grounds of substantive defect (arts. 103 and 118 CPC), which may be raised in any event.
The jurisdiction of the JME: a changing regime
Decree no. 2019-1333 of 11 December 2019 has radically altered the jurisdiction of the juge de la mise en condition. A recent opinion of the Cour de cassation of 11 October 2022 (no. 22-70.010) draws a distinction among the grounds for dismissal: between those "relating to the appeal proceedings", which fall within the jurisdiction of the Conseiller de la mise en état, and those "relating to the appeal", which can only be heard by the court.
Even more recently, decree no. 2024-673 of 3 July 2024, known as "Magicobus I", accentuates this development by allowing the JME to refer to the court hearing the case on the merits the examination of any objection to dismissal without distinction.
2. Subjective conditions of eligibility
Pleas raised by the parties: interest and standing
Any litigant who has an interest in the matter is entitled to raise a defence. There are, however, limits to this rule, particularly where a litigant is at the origin of the situation he is complaining about. As the Cour de cassation has pointed out (Civ. 2e, 24 March 1993, no. 91-18.611), a person who has served a summons on an unincorporated firm is inadmissible to subsequently challenge its status.
Article 117 of the Code of Civil Procedure allows the adversary of the represented person to raise this ground of nullity based on a substantive defect, contrary to ordinary law.
The role of the judge: between obligation and option
The court may, and sometimes must, raise certain pleas of its own motion. This prerogative varies according to the nature of the plea:
For defences on the merits, the case law considers that the court must raise a defence of its own motion when the defendant does not raise any (Civ. 3e, 27 June 2006, no. 05-15.394) or when the facts relied on by the litigant call for the application of a rule of law of public order.
With regard to grounds for dismissal, Article 125 of the Code of Civil Procedure distinguishes between those that must be raised ex officio (those of public policy) and those that may be raised (lack of interest, lack of standing, res judicata).
The rules governing objections vary according to their nature. A plea of nullity based on a defect in form cannot be raised ex officio (Civ. 2e, 21 July 1986, no. 84-16.110), whereas the judge may note ex officio that a claim is time-barred since Decree no. 2017-892 of 6 May 2017.
The adversarial principle: a fundamental guarantee
Article 16, paragraph 3 of the Code of Civil Procedure requires the judge, when raising a plea of his own motion, to ask the parties for their explanations. This requirement has been reaffirmed by the Cour de cassation (Com. 23 March 1993, no. 91-12.364).
3. Conditions for admission of the plea
The notion of grievance for formal nullities
The exception of nullity due to a formal defect is subject to a specific condition: the person invoking it must prove that the irregularity causes him a prejudice, in accordance with article 114, paragraph 2 of the Code of Civil Procedure. This prejudice is understood to mean a disorganisation of his defence resulting in a risk of losing the case.
The Cour de cassation has had occasion to specify that this requirement of a grievance is specific to nullities for formal defects and does not apply to other pleas (Civ. 2e, 9 May 1985, no. 83-15.986).
No regularisation: a common condition
The general condition for the admission of a plea is the absence of regularisation of the defect vitiating the opposing claim. Article 121 of the Code of Civil Procedure for objections and Article 126 for pleas in bar provide for this possibility of rectification.
This is only legally possible where it is materially conceivable and the spirit of the requirement being breached does not stand in the way.
The regularisation system: a regulated mechanism
The regularisation must take place before the judge rules on the plea, as specified in articles 121 and 126 of the Code of Civil Procedure. This formula is interpreted as referring to the closure order or the closure of the debates (Civ. 2e, 3 June 1998, no. 96-21.173).
There has been some debate as to whether an irregularity discovered at first instance could be rectified on appeal. The case law accepts this possibility, both for defences on the merits and grounds for dismissal (Civ. 2e, 4 July 1984, no. 82-15.432) and for objections (Civ. 3e, 17 Apr. 1984).
In the case of certain pleas, in particular objections to nullity based on a formal defect, regularisation must take place "before any limitation period". This requirement has lost some of its relevance since the reform of the limitation period under Act no. 2008-561 of 17 June 2008, as the Cour de cassation has pointed out (Civ. 1re, 25 Nov. 2010, no. 09-69.124).
The procedural machinery is complex and sometimes unpredictable. A well-founded defence may fail for lack of admissibility. Conversely, an apparent defect may be covered by a timely adjustment. This technical dimension justifies the involvement of a professional who has mastered these subtleties.
If you don't want your arguments to be dismissed on purely formal grounds, or if you want to identify loopholes in your opponent's defence, sound advice can prove decisive. The firm remains available to examine your case and guide you towards the best procedural strategy.
Sources
- Code of Civil Procedure, articles 71 to 126, 789, 795
- Decree no. 2019-1333 of 11 December 2019 on civil procedure
- Decree no. 2024-673 of 3 July 2024 (Magicobus I)
- Civ. 1st, 17 March 2016, no. 15-13.765
- Civ. 3e, 8 March 1977, no. 75-14.834
- Civ. 2e, 3 June 1998, no. 96-21.173
- Civ. 2e, opinion, 11 October 2022, no. 22-70.010
- Civ. 2e, 21 July 1986, no. 84-16.110
- Pétel-Teyssié I., Répertoire de procédure civile, "Défenses, exceptions, fins de non-recevoir".
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