The ordonnance sur requête: a little-known but powerful tool in civil procedure

Justice sometimes offers discreet but formidable tools. The ordonnance sur requête falls into this category. A temporary measure issued without adversarial debate, it enables swift and discreet action to be taken when the situation so requires. Its effectiveness is based on the element of surprise it provides.

Definition and place in our judicial system

An ordonnance sur requête is legally defined as "a provisional decision rendered without adversarial hearing in cases where the petitioner is justified in not calling an opposing party" (article 493 of the Code of Civil Procedure). It forms part of the emergency proceedings alongside summary proceedings, but is distinguished from them by its non-adversarial nature.

This procedure offers a rapid means of legal action when waiting for an adversarial debate would compromise the effectiveness of the requested measure.

The invention of a practice that has become an institution

This mechanism has its origins in the initiative of two judges of the civil court of the Seine in the 19th century: Bertin and de Belleyme. The latter, president of this court from 1829 to 1856, introduced the ordonnance sur requête into judicial practice and sketched out its system.

For a long time, the legislator ignored this praetorian creation. It was not until decree no. 71-740 of 9 September 1971, followed by the new Code of Civil Procedure, that the institution was officially enshrined and its rules detailed.

The advantages of discretion and efficiency subsequently led to a proliferation of cases of application, both by legislation and by extension of the case law on the basis of article 812 of the Code of Civil Procedure.

Named and unnamed orders: a key distinction

The distinction between "named" and "unnamed" orders on application is a key feature of this institution.

Named orders are based on specific texts that expressly provide for this procedure. Examples :

• Urgent measures to protect the interests of a family (article 220-1 of the Civil Code)
• Infringement (article L. 716-7 of the French Intellectual Property Code)
• Appointment of a provisional co-ownership administrator (law of 10 July 1965)

The unnamed orders are based on article 812 paragraph 2 of the Code of Civil Procedure, which allows the president of the judicial court to order "on application all urgent measures when circumstances require that they not be taken in adversarial proceedings".

This distinction has major practical consequences, particularly in terms of the reasons given for waiving the right to be heard by both parties.

Three key features

1. Its temporary nature It does not have the force of res judicata in the main proceedings and is not binding on the trial judge. The court may reverse its decision if it appears that it was unjustified (article 496 of the Code of Civil Procedure).
2. The absence of contradiction The opposing party is not called. It may later challenge the measure by means of the " interim injunction "(article 496, paragraph 2).
3. The emergency This is explicitly required for unnamed orders (article 812) and in fact characterises most of the situations justifying these measures.

Multiple practical applications

The order on request is used in various contexts :

• Probationary measures Bailiff's reports (adultery, unfair competition), pre-trial investigations (article 145 of the Code of Civil Procedure)
• Precautionary measures : precautionary seizures, judicial securities
• Administrative measures appointment of provisional administrators
• Eviction measures occupiers without right or title, demonstrators (since the Ferodo ruling, Soc. 17 May 1977)

The Ferodo ruling in 1977 established the possibility of expelling people who cannot be individually identified by means of a court order, opening up a valuable procedural avenue in certain crisis situations.

When should you opt for this procedure?

There are three main situations in which an order on application is required:

1. No identifiable opponent practical impossibility of assigning a person
2. The need for surprise risk of evidence disappearing, assets being moved
3. Impossible to identify all opponents Unidentified illegal occupants

In the case of unnamed orders, the applicant must demonstrate the circumstances justifying the derogation from the adversarial principle.

A lawyer will assess the chances of success of this procedure and guide you in the choice between summary proceedings and a petition, the latter remaining subsidiary to the adversarial summary proceedings when the texts provide for both options.

For any situation that requires speed and discretion, consulting a professional quickly often makes it possible to preserving rights which could be irreparably compromised by the slowness or publicity of an ordinary procedure.

Sources

• Article 493 of the Code of Civil Procedure: general definition of an order on application
• Article 812 of the Code of Civil Procedure: power of the president of the court to issue an order on application
• Ferodo ruling, Social Division of the Court of Cassation, 17 May 1977: orders on request for the eviction of unidentified persons established
• Decree no. 71-740 of 9 September 1971: first legislative recognition of the order on request
• Articles 145, 496 and 497 of the Code of Civil Procedure: procedural regime for orders on application
• Sylvie PIERRE-MAURICE, "Ordonnance sur requête et matière gracieuse", Dalloz, 2003: in-depth doctrinal study on the legal nature of the ordonnance sur requête.