Areas of application of application orders: a complete overview

Order on request is a multi-purpose procedural tool. In my practice, I regularly find that many litigants are unaware of this procedure, even though it can be extremely effective. Defined in article 493 of the Code of Civil Procedure as "a provisional decision rendered without adversarial hearing in cases where the applicant is justified in not calling an opposing party", it offers a rapid judicial response in various emergency situations.

Personal and family law

The President of the Judicial Court (formerly the High Court) intervenes by means of an order on request:

• Order the rectification of civil status records (article 99 of the Civil Code)
• Prescribing urgent measures when one of the spouses fails in his or her duties and jeopardises the family's interests (article 220-1 of the Civil Code)

The family court judge may also take emergency measures in accordance with article 257 of the Civil Code, as soon as the initial petition for divorce is filed.

Although not expressly provided for by law, adultery reports are frequently ordered in this non-adversarial way.

Guardianship

The decisions handed down by the guardianship judge are qualified by case law as orders on request in form. The Court of Cassation has specified that " the authorisation of the guardianship judge must take the form of an order on request "(Civ. 1st, 22 October 2008, no. 07-19.964).

This classification may come as a surprise, as these decisions do not share the fundamental characteristics of orders on application (provisional and non-adversarial nature). Rather, they are decisions that are not subject to appeal.

Joint ownership and undivided ownership

The motions judge intervenes to designate:

• A condominium manager (article 17 of the law of 10 July 1965)
• Members of the Trade Union Council (article 21 of the same law)
• A provisional administrator (article 18)
• Various agents

In joint ownership, article 815-6 of the Civil Code authorises the president of the court to order "all urgent measures required by the common interest" of the joint owners.

Commercial and company law

The arsenal of application orders in company law is impressive. They allow:

1. The appointment of various stakeholders:
   • Statutory auditor (articles L. 223-14 and R. 223-11 of the French Commercial Code)
   • Expert responsible for determining the value of company rights (same articles)
   • Contribution auditor (articles L. 223-9, L. 223-33, L. 223-35)
   • Liquidator (article L. 237-19)
   • Liquidation auditor (article L. 237-17)
2. Extension of strategic deadlines:
   • Postponement of the liquidator's term of office (article 237-21)
   • Postponement of the deadline for convening general meetings (article L. 237-23)
   • Extension of dividend payment deadline (article L. 232-13)
3. The authorisations required to operate the company:
   • Exemption from the requirement to convene a meeting for the liquidator (article L. 237-25)
   • Authorisation to withdraw funds from an unincorporated SARL (article L. 223-8)

The President of the Commercial Court generally has jurisdiction over such measures concerning commercial companies.

In bankruptcy proceedings

The President of the Commercial Court may intervene by order upon request:

• Replacing an administrator or judicial representative (article R. 612-2 of the French Commercial Code)
• Appoint an agent to continue proceedings when the procedural bodies have ceased their functions (Com. 30 October 2007, no. 06-16.129)
• Extend various deadlines, in particular the deadline for approving accounts

Intellectual property

Orders on application are crucial in intellectual property matters for:

1. Ordering evidentiary measures prior to infringement proceedings:
   • Seizure-description (detailed identification of the contested products)
   • Counterfeit seizure (actual seizure of counterfeit products)

These procedures are open to holders of:

• Trademarks (article L. 716-7 of the CPI)
• Patents (article L. 615-3)
• Designs (article L. 521-4)
• Literary/artistic works (article L. 332-1)
• Plant variety certificates (article L. 623-27)
• Software (article L. 332-1)
• Databases (article L. 343-1)

2. Lifting the anonymity of Internet counterfeiters (article 6-I-8 of the LCEN of 21 June 2004)

Probationary and protective measures

Probationary measures

Article 145 of the Code of Civil Procedure allows legitimate investigative measures to be obtained "on application or in summary proceedings" before any trial. Case law has made it clear that the use of the non-adversarial application procedure remains subsidiary, justified only by circumstances requiring a departure from the adversarial principle.

Note: urgency is not a condition for using this preventive probation order (Civ. 2e, 15 January 2009, no. 08-10.771).

Precautionary measures

Article 67 of the Law of 9 July 1991 (reforming enforcement procedures) allows any person whose claim appears to be well-founded in principle to apply to the court for authorisation to take protective measures.

These measures can take various forms:

• Consignment of threatened objects or heritage
• Seizures (attachment for sale, attachment for payment, attachment for reclaim)
• Judicial sureties

With regard to enforcement

Orders on request are also used to:

• Extending deadlines for property seizures
• Authorise simultaneous legal action on several properties assigned to the same claim (article 2533 of the Civil Code)
• Deporting people who cannot be identified (Ferodo case law, Soc. 17 May 1977)
• Approve agreements (transactions under article 1444-1 of the CPC, proposed distribution of the price after seizure of property)

On a day-to-day basis, these orders offer quick, discreet and effective solutions. Well-mastered procedural tactics can make all the difference in many disputes. However, their implementation remains technical and requires an in-depth analysis of the circumstances justifying the order. non-contradictory.

Need to obtain a court order quickly without alerting the opposing party? Contact our firm to find out whether a motion order is right for you.

Sources

• Code of civil procedure, articles 493 to 498
• Civil Code, articles 99, 220-1, 257, 815-6, 2533
• French Commercial Code, articles L. 223-14, R. 223-11, L. 223-9, L. 237-19
• Intellectual Property Code, articles L. 716-7, L. 615-3, L. 521-4, L. 332-1
• Law no. 65-557 of 10 July 1965 on co-ownership
• Law no. 2004-575 of 21 June 2004 on confidence in the digital economy
• Civ. 1st, 22 October 2008, no. 07-19.964, Bull. civ. I, no. 239
• Com. 30 October 2007, no. 06-16.129, Bull. civ. IV, no. 230
• Soc. 17 May 1977, D. 1977, p. 645 (Ferodo judgment)
• Civ. 2e, 15 January 2009, no. 08-10.771, Bull. civ. II, no. 15