When you go to court, a number of obstacles can arise. Defences on the merits, pleas of inadmissibility, procedural objections - in the face of these obstacles, the judge has specific but limited powers. Sometimes he must act on his own initiative. Sometimes he can do nothing. The stakes are crucial for your case.
Official statement of defence on the merits
The judge is not simply a spectator. He must sometimes raise defences on the merits of his own motion, and this power is exercised in a number of specific cases.
When the judge must intervene
First, the judge must act if the defendant raises no defence. This obligation is implicit in Article 12 of the Code of Civil Procedure, which requires the judge to decide the case in accordance with the applicable rules of law.
Secondly, the judge must raise pleas of pure law when these are of public policy. As the 2nd Civil Chamber stated in its judgment of 3 September 2015 (no. 14-20.431), "public policy requires the judge to raise of its own motion the pleas of law relating thereto".
In practical terms, if you forget to invoke a rule of public policy that would be favourable to you, the judge must raise it himself.
When the judge can intervene
For defences that combine fact and law, the judge has a simple option.
It may also take into account facts present in the debate but not specifically invoked in support of the claims. Article 7, paragraph 2 of the Code of Civil Procedure expressly authorises it to do so.
A concrete example: if you mention a fact in your written submissions without using it as an argument, the judge can nevertheless use it to construct his legal reasoning.
Limits to judicial intervention
The judge may never raise of his own motion a rule of law that is not of public policy. This was clearly established by the 1st Civil Chamber on 26 May 1999 (no. 97-15.433).
He is also prohibited from considering facts that are absent from the debate, by virtue of article 7, paragraph 1 of the Code of Civil Procedure. This restriction is particularly strict in proceedings for divorce or legal separation, where the judge may not use facts that appear in the file without having been specifically invoked.
Dismissal by the court of its own motion
The Code of Civil Procedure establishes a three-tier system for dismissing claims, with a choice between obligation, possibility and prohibition.
The three categories of dismissal
Article 125 of the Code of Civil Procedure distinguishes between two explicit situations: public policy grounds for dismissal, which the court must raise of its own motion, and certain specific grounds that it may raise (lack of interest, lack of standing and res judicata).
Case law has identified a third category: pleas of non-receivability that are neither compulsory nor optional, which the court cannot raise. The 2nd Civil Chamber firmly maintained this position in its judgment of 28 February 2006 (no. 04-15.983).
Identifying public policy grounds for dismissal
Some grounds for dismissal are of public policy because of the subject matter concerned. This is the case for personal status, which is governed by the principle of indisponibility, as the 1st Civil Chamber recalled on 6 May 2009 (no. 07-21.826).
Others are established by law. For example, failure to comply with the time limits for exercising legal remedies and failure to open a legal remedy must be raised ex officio.
Limitation periods (with the exception of some, such as actions for rescission on grounds of lesion) generally fall into this category. The 2nd Civil Chamber confirmed this on 29 November 2001 (no. 99-18.559).
Practical difficulties of identification
The legislator sometimes intervenes without specifying whether ex officio relief is compulsory or simply possible. Since decree no. 2009-1524 of 9 December 2009, new claims on appeal are prohibited "on pain of inadmissibility pronounced ex officio". Case law has interpreted this as providing a simple option (Civ. 2e, 10 January 2013, no. 12-11.667).
Res judicata and lack of standing also raise questions. Prior to 2004, they could not generally be raised ex officio, with certain exceptions. The decree of 20 August 2004 allowed them to be raised ex officio, but the case law maintains that they must be raised when they are of public policy nature.
Raising procedural objections ex officio
The rules governing procedural exceptions vary according to their nature. It is impossible to establish a single principle.
A heterogeneous system
A plea of nullity based on a formal defect may never be raised ex officio. This prohibition is justified by the requirement of a grievance, a subjective notion that is difficult for the judge to assess without a party complaining about it.
For the lapse of time, Article 388 of the Code of Civil Procedure specifies that the judge "may" establish it ex officio, since Decree no. 2017-892 of 6 May 2017.
With regard to lis pendens, the court may decline jurisdiction of its own motion if the case was referred to it second, in accordance with article 100 of the Code of Civil Procedure.
The special case of incompetence
For lack of jurisdiction, the Code of Civil Procedure establishes a tripartite system:
- Obligation to raise ex officio in certain limited cases (article 1406 CPC)
- Option in the cases listed in Articles 76 and 77
- Prohibition in other situations
This distinction applies both between jurisdiction of attribution and territorial jurisdiction and within each of these categories.
The plea of nullity on grounds of substantive defect
Article 120 of the Code of Civil Procedure requires the court to raise a substantive irregularity of its own motion where the rule infringed is a matter of public policy.
It allows him to do so if he lacks the capacity to sue, as illustrated by the 1st Civil Chamber on 2 November 1994 (no. 92-14.642).
Apart from these specific cases, the doctrine is that the court cannot raise this type of exception of its own motion.
The firm monitors developments in the rules governing the judge's power to intervene on a daily basis. This monitoring enables us to advise you on the defences that must be expressly raised and those that may be raised ex officio.
Your litigation strategy must take account of these procedural subtleties. Personalised legal advice will enable you to tailor your defence to the specifics of your case and the judge hearing it.
Sources
- Code of Civil Procedure, articles 7, 12, 76, 77, 100, 120, 125 and 388
- Civ. 2e, 3 Sept. 2015, no. 14-20.431
- Civ. 1st, 26 May 1999, no. 97-15.433
- Civ. 2e, 28 Feb 2006, no. 04-15.983
- Civ. 1st, 6 May 2009, no. 07-21.826
- Civ. 2e, 29 Nov. 2001, no. 99-18.559
- Civ. 2e, 10 Jan. 2013, no. 12-11.667
- Civ. 1st, 2 Nov. 1994, no. 92-14.642
- Decree no. 2017-892 of 6 May 2017
- Decree no. 2009-1524 of 9 December 2009
- Decree of 20 August 2004
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