Civil procedure

Civil procedure: definition, sources and objectives

Civil procedure - which is classically referred to as the private judicial law - is the set of rules that govern private litigation. It tells you how to bring a case before a judge, how proceedings are conducted and how decisions are made and challenged. It is not a substantive law: it does not decide on marriage, property or contractual debt. It is the instructions for use in legal proceedings, the technical framework that enables substantive rules to be applied before a judge.

Its main source is the Code of civil procedure, The Code of Judicial Organisation (COJ), codified by decree no. 75-1123 of 5 December 1975, came into force on 1 January 1976. The Code of Judicial Organisation (COJ) completes this system by setting out the structure of the courts, their jurisdiction and their operating rules. The Constitution - which guarantees the rights of the defence as part of the constitutionality block - and article 6 § 1 of the European Convention on Human Rights, which imposes the right to a fair trial within a reasonable time, before an independent and impartial court, are added to the list of sources.

This threefold anchoring has a practical consequence: when a rule of the Code of Civil Procedure runs counter to a constitutional or conventional guarantee, it can be set aside. The Cour de cassation no longer hesitates to review the practical effects of a procedural rule with regard to the right to a fair trial, and European case law has on several occasions sanctioned French solutions deemed disproportionate in the name of the right of access to the courts.

The purpose of the subject is twofold. At the level of the parties, it organises the implementation of private rights: without procedure, substantive law remains theoretical, and the best-founded rights are only as good as the path that leads to the judge. At an institutional level, it ensures social peace by substituting organised litigation for private vengeance. This dual role explains why civil procedure is simultaneously technical - it is a maze of time limits, forms and nullities - and political: each of its rules is a trade-off between the efficiency of the trial, equality of arms and legal certainty.

The guiding principles of civil litigation

Articles 1 to 24 of the Code of Civil Procedure set out the principles that underpin civil procedure. They are not mere declarations: each is an operational rule whose disregard exposes the decision to cassation.

Le principle device states that the parties are masters of the matter in dispute. They alone initiate the proceedings, they alone determine the subject matter, and the court may not rule either ultra petita (beyond what is requested) or infra petita (on less than what is requested). Article 4 of the Code of Civil Procedure puts it this way: the subject matter of the dispute is determined by the respective claims of the parties. Article 5 draws the consequence from this: the court must rule on everything that is claimed and only on what is claimed.

Le adversarial principle, enshrined in Articles 14 to 16, is the cornerstone of a fair trial. No party may be judged without having been heard or called. The judge must, in all circumstances, observe and himself observe the principle of contradiction: he may not include in his decision the pleas, explanations and documents put forward or produced by the parties unless they have been able to debate them in adversarial proceedings. This requirement extends to pleas raised ex officio: when the court intends to base its decision on a plea in law that the parties have not raised, it must invite them to present their observations. Failure to comply with this rule continues to result in an appeal to the Supreme Court every year.

L'the judge's role, The principle of the "dispositif", defined in Article 12, is tempered. The court decides the dispute in accordance with the applicable rules of law and gives the facts their correct characterisation, irrespective of what the parties have proposed. He may not change the subject of the dispute, but he may change the rule on which he bases himself - provided that he respects the adversarial principle when he substitutes one basis for another.

To these three pillars must be added the burden of proof (articles 6, 7 and 9 - each party must prove in accordance with the law the facts necessary for the success of its claim), the public nature of the proceedings (article 22, in direct echo of article 6 § 1 ECHR), and procedural fairness, a principle that has not been codified in case law but is constantly used by the Cour de cassation to punish dilatory or unfair behaviour. More recently, the principle of expedition - which underlies the 2019 and 2020 reforms - has become increasingly important: contractualised procedural timetables, summonses to appear, termination of proceedings, and settlement hearings.

Organisation of the civil courts and rules of jurisdiction

The French judicial system is one of the two main branches of justice - the other being the administrative system. The judiciary deals with all disputes between private individuals (civil, commercial, social) and criminal disputes. In its civil branch, it is structured around a number of key courts.

Le judicial tribunal, The Tribunal de Grande Instance, created by the merger of the Tribunal de Grande Instance and the Tribunal d'Instance under Act no. 2019-222 of 23 March 2019 (effective from 1 January 2020), is the civil court of general jurisdiction. It hears at first instance all civil matters that are not assigned to another court. Within the judicial court, the protection litigation judge rules on the most common everyday disputes: residential leases, consumer credit, over-indebtedness, guardianship of adults. Still within the judicial court, the enforcement judge (JEX) has exclusive jurisdiction over difficulties in enforcing an enforceable title - we come back to this in more detail in our guide to enforcement procedures.

Alongside the judicial courts, two special civil courts play a major role in economic disputes: the commercial court, made up of elected consular judges, which hears disputes between merchants, commercial acts and collective procedures; and the industrial tribunal, These courts have jurisdiction over individual disputes arising from employment contracts. In these courts, the guiding principles remain the same, but the procedure is governed by its own rules: oral proceedings, representation not compulsory in many cases, and joint panels.

In the second degree, the court of appeal is a means of reformation. It reconsiders the case in fact and in law within the limits of the devolution, under the rigorous regime of the so-called «Magendie» timetable - submissions by the appellant within three months of the declaration of appeal (article 908), submissions by the respondent within the following three months (article 909), sanctions by lapsing or inadmissibility. Lastly, the Court of Cassation is a judge of the law and not of the facts: it does not retry the case but checks that the decisions comply with the rules of law. Appeals may be lodged through an avocat aux Conseils and must be lodged within two months of notification of the contested decision (article 612).

Within this chessboard, two rules of competence govern everything. The attribution of competence designates the court or tribunal required by the nature of the dispute - judicial court, commercial court, industrial tribunal, protection litigation judge. It is a matter of public policy in many areas: it cannot be waived by agreement. The territorial jurisdiction, The rule of principle governing the jurisdiction of courts is set out in article 42 of the Code of Civil Procedure: the court with jurisdiction is the place where the defendant lives. However, special rules apply in certain areas: in contractual matters, the claimant may bring proceedings in the court for the place of actual delivery or the place where the service was provided; in real estate matters, the place where the property is located takes precedence; in matters relating to tort, the claimant may choose between the court for the place where the harmful event occurred and the court for the place where the damage was suffered. Jurisdiction clauses are deemed unwritten, unless they have been agreed between merchants and are specified in a very apparent manner (article 48).

Legal action: conditions and grounds for dismissal

Article 30 of the Code of Civil Procedure defines an action as the right of the author of a claim to be heard on the merits so that the judge can decide whether it is well-founded or not. For the opponent, it is the right to discuss the merits of the claim. Before addressing the merits of the case, the action must be admissible - in other words, three conditions must be met.

L'interest to act must be born, present, direct and personal (article 31). You do not act for another person or for a possible interest: the mere possibility of future harm is not enough, unless preventive action is expressly authorised by law. The standing, In its technical sense, this only comes into play when the law reserves the right to take action to certain restrictively designated persons - these are known as designated actions, such as divorce actions or group actions. The legal standing, Lastly, article 117 imposes penalties on minors who are not represented, protected adults who do not have a representative, and legal entities that are dissolved without a liquidator.

Where one of these conditions is not met, the other party may raise an objection. no reply. Article 122 gives a definition that must be quoted exactly: «A plea of non-receivability is any plea that tends to have the adversary's claim declared inadmissible, without examination of the merits, for lack of the right to act, such as lack of standing, lack of interest, prescription, time limit or res judicata». The plea of inadmissibility is therefore a procedural plea that paralyses the action even before it is examined. Unlike procedural pleas (nullity, lack of jurisdiction, lis pendens), they may in principle be raised in any case, including for the first time in an appeal, subject only to dilatory abuse (article 123).

Certain pleas of inadmissibility must be raised by the court of its own motion: those of public policy - in particular res judicata, time-barring, failure to observe a time limit (article 125). Regularisation remains possible as long as the court has not given a ruling (article 126): the party may, for example, provide proof of his standing to act or designate the missing representative.

Recent case law has clarified two important points. In July 2024, the Second Civil Chamber of the Court of Cassation ruled that, because they are not claims on the merits, pleadings are not subject to the obligation to concentrate claims set out in Article 910-4 of the Code of Civil Procedure (Cass. 2nd civ., 4 July 2024, no. 21-20.694). A few months earlier, it had reiterated that the divestment of a debtor in compulsory liquidation constitutes a plea of inadmissibility for lack of standing to sue, which must be raised ex officio. Finally, with regard to jurisdiction, the 2019 reform has given the Pre-Trial Judge (and the Pre-Trial Judge on appeal) exclusive jurisdiction to rule on pleas in bar: a litigant who waits for oral argument to raise them risks foreclosure.

Dismissals deserve particular attention because they are often the first line of defence: if they are well managed, they can avoid a debate on the merits, the outcome of which would be uncertain. For details of the rules and strategies, see our guide to refusal of applications.

Initiation and conduct of proceedings

Proceedings begin with a referral. The Code of Civil Procedure provides for several methods, each with its own logic. L’assignment, This procedure, issued by a court commissioner, remains the standard procedure before the judicial court. Articles 54, 55, 56 and 752-753 set out the compulsory details: identification of the parties, designation of the court, subject of the claim, statement of the legal and factual arguments, list of documents, indication of the steps taken to resolve the dispute amicably, and - an innovation in the summons «à date» - mention of the date and time of the hearing. The request, A joint application (article 57) or a unilateral application (article 58) enables the parties to bring a case before the court without having to go through a bailiff's writ: the joint application favours an accelerated pre-trial procedure, while the unilateral application is reserved for measures that justify a derogation from the adversarial procedure (articles 493 et seq.). Lastly, the declaration to the registry, For small claims, the new procedure offers a simplified, oral procedure.

All these methods are governed by a single rule: the mandatory representation by a lawyer. Article 760 establishes it as a principle before the judicial court, while articles 761 and 762 list the limited exceptions. Before the Court of Appeal and the Court of Cassation, representation is systematic, except in social matters before the Court of Appeal. Choosing the right method of referral is therefore also a choice about the quality of the defence: oral proceedings often leave the litigant alone when faced with a technical dispute.

Beyond the strictly procedural aspects, the writ of summons has major substantive effects. It interrupts the statute of limitations (article 2241 of the Civil Code), it interrupts the foreclosure period, and it serves as formal notice in the civil sense of the term. In many cases, the choice of the day on which a writ of summons is served is also the choice of the day on which a right is preserved that would otherwise have been lost. Our guide to formal notice looks at the relationship between prior formal notice and summons.

Once proceedings have been initiated, they enter the repair. Governed by articles 763 et seq., it is conducted by a dedicated magistrate - the juge de la mise en état (JME) in the court of first instance, the conseiller de la mise en état (CME) in the court of appeal. Depending on the complexity of the case, the procedure may be short (a single hearing), medium or long. The pleadings are followed by the summary pleadings (article 768), which set out all the claims and arguments. The closure of the proceedings, pronounced by order, definitively closes the discussion before the pleadings. Since 2019, the JME and the CME have had exclusive jurisdiction to rule on procedural objections, incidents and pleas in bar: each incident must be raised and dealt with at the right stage, failing which the case will be barred.

Nullity, nullity and expiry: procedural pitfalls

The course of the proceedings is punctuated by incidents which, if poorly anticipated, can result in the loss of the benefit of the action. Three mechanisms deserve particular attention.

The invalidity of procedural documents fall into two categories. The formal invalidity (articles 112 to 116) penalise defects in the form of a document, such as the omission of a compulsory statement, service on the wrong address or error in identifying a party. Article 114 lays down the adage «no nullity without prejudice»: no document may be declared null and void on the grounds of a defect in form unless the nullity is expressly provided for by law, and it is up to the party claiming nullity to prove that there is a prejudice, even in the case of a substantial formality or one of public policy. The Court of Cassation applies this strictly: it is not enough to argue that a rule has been disregarded; it must be shown that the irregularity has in fact harmed the interests of the litigant (Cass. 2nd civ. 20 Oct. 2011, no. 10-24.109). The substantive invalidity (articles 117 to 121) follow a different logic: article 117 sets out a limitative list - lack of capacity to sue, lack of authority of a party or of a person appearing in the proceedings as representative, lack of capacity or authority of the representative. Unlike formal nullities, these may be declared without the need to prove a grievance (article 119), they may be raised in any event and must be raised ex officio when they are of a public policy nature. Our guide to the nullity of procedural documents sets out the strategies for contesting and regularising the situation.

La lapsing, The statute of limitations, governed by articles 385 et seq., extinguishes proceedings where an essential act has not been carried out within the required time limit: failure to register the writ of summons, failure of the appellant to file submissions within the time limit set out in article 908. It does not affect the action itself: new proceedings may be instituted if the limitation period has not expired. But in the meantime, the litigant has lost the initial interruptive effect, and the time limit that he thought he had under control may have slipped through his fingers. For details of the regime, see our guide to lapsing.

La lapse of proceedings, Finally, this is undoubtedly the most feared pitfall in practice. Article 386 puts it succinctly: «The proceedings lapse if none of the parties takes any action for two years.» The rule is simple, but its application is much less so. The Cour de cassation has consistently held that merely appearing at a hearing at which the case is adjourned does not in itself constitute diligence capable of interrupting the time limit (Cass. 2nd civ., 25 Sept. 2014, no. 13-19.583). In other words, a long-running case may lapse silently if none of the parties takes any action to advance the proceedings. The lapse of time extinguishes the proceedings without preventing a new action, provided that the statute of limitations has not run out (article 389), and confers the force of res judicata on a judgment that has already been handed down, even if it has not been notified (article 390). This is a frequent cause of lawyers' professional civil liability.

For these three mechanisms, the practical rule is the same: keep a rigorous calendar of each case and document each useful diligence. A well-managed case is never surprised when it lapses or expires.

Judgment, costs and appeals

The judgment is the outcome of the proceedings. Article 480 of the Code of Civil Procedure specifies its scope: a judgment that rules in its device A judgement that has the force of res judicata in respect of all or part of the principal claim, or that rules on a procedural objection, a plea in bar or any other incident, has the force of res judicata in respect of the dispute that it resolves. Res judicata in the strict sense is acquired when the judgment is no longer subject to any suspensive appeal (article 500).

L'res judicata is one of the most important concepts in this area: it prohibits the resubmission to the court of a dispute that has already been decided. Its application is based on the rule of triple identity, set out in article 1355 of the Civil Code (formerly article 1351): identity of subject-matter, identity of cause of action, identity of parties. Two judgments of the full court have set out the contemporary contours of this rule. In the Cesareo (Cass. Ass. plen., 7 July 2006, no. 04-10.672), the Court of Cassation established the principle of concentration of resources A second action on the same subject from a different legal angle is inadmissible. Three years later (Cass. Ass. plen., 13 March 2009, no. 08-16.033), the plenary assembly provided an essential counterpoint: the authority of res judicata applies only to what has been decided in the operative part; the grounds, even decisive ones, do not have this authority. Careful reading of the operative part of a judgment therefore remains the first step in any procedural strategy.

The consequences of the judgment include costs and thearticle 700, which should not be confused. Costs (articles 695 to 699) are the costs of the proceedings: duties, taxes and fees levied by the court registries, translation costs, witness fees, fees paid to technicians, fees paid to public or ministerial officers, fees paid to lawyers in the case of postulation. The list in article 695 is exhaustive, and the rule of principle is that of article 696: the losing party is ordered to pay the costs, unless the court, by reasoned decision, awards all or part of them to another party. L’article 700, covers the irreducible costs - essentially lawyers' fees, which are not included in the costs. The judge orders the party that is liable to pay the costs or that loses the case to pay the other party a sum that he determines for the costs incurred and not included in the costs, taking into account equity and the economic situation. The court may, even of its own motion, rule that there are no grounds for such an award. In practice, the amounts awarded are almost always lower than the fees actually incurred - a point that litigants should be aware of before commencing proceedings. To get to the heart of the matter, see our guide to article 700 and costs.

Lastly, the judgment may be challenged by exercising a right of appeal. right of appeal. The classification is divided into two categories. Ordinary routes - the’call and theopposition - In principle, appeals suspend enforcement of the contested decision (subject to the now major reservation of provisional enforcement, which has been the general rule since 1 January 2020). The appeal, the ordinary appeal, must be lodged within one month of notification of the judgment (article 538 of the Code of Civil Procedure), reduced to fifteen days in summary proceedings. The opposition, reserved for the defaulting party against a judgment rendered by default, is subject to the same one-month time limit. Extraordinary remedies - the appeal to the Supreme Courtthe third party oppositionthe application for review - have no suspensive effect. An appeal to the Court of Cassation, lodged within two months of notification (article 612), is the ultimate review of legality: the Court of Cassation verifies that the trial judges have correctly applied the rule of law, without retrying the case. Third-party proceedings enable a third party adversely affected by a judgment to have the decision retracted or amended to the extent that it adversely affects him or her. Lastly, an application for judicial review is a narrow option: it is only available in a limited number of cases (fraud, false documents, decisive documents withheld by the opposing party, false testimony) and within two months of the discovery of the cause of action.

From decision to enforcement: the bridge with enforcement procedures

A judgment, even one that has become res judicata, is not sufficient in itself: to compel the recalcitrant debtor, the creditor must still obtain a enforcement order, This changeover - from litigation to enforced collection - is the junction between civil procedure and enforcement. This changeover - from litigation to forced collection - is the junction between civil procedure and enforcement measures, a subject governed by the Code of Civil Enforcement Procedures (CPCE).

Article L. 111-3 of the CPCE lists enforceable titles: decisions of the courts and administrative tribunals, foreign judgments and arbitration awards bearing the exequatur, approved agreements, notarial deeds bearing the executory formula, titles issued by legal persons governed by public law when they are qualified as such by law, titles issued by the court commissioner in the event of non-payment of a cheque. Article L. 111-4 lays down the rule governing the limitation period: in principle, enforcement can only be pursued for ten years. Once this period has elapsed, the creditor loses the right to take enforcement action, even if his claim has not been substantially extinguished.

For information on the practical implementation of these measures - attachment for payment, attachment for sale, seizure of real estate, precautionary measures, astreinte, disputes before the enforcement judge - readers are invited to consult our guide to enforcement procedures. This is where the economic reality of the proceedings comes into play: a judgment that remains unenforced is of little value to the creditor.

In short, civil procedure is neither gratuitous formalism nor a science for insiders. It is the framework that enables substantive law to become effective. If properly mastered, it transforms a disputed claim into an enforceable title, and an enforceable title into payment. If it is not properly mastered, good law loses the very benefit of litigation. For each stage of the process, the children's guides in this hub (formal notice, pleas of inadmissibility, nullity, lapsing, Article 700, licitation) go into the rules in greater detail, and our expertise pages - commercial law, banking and finance, enforcement, insolvency proceedings, securities, credit law - explain how they apply to our areas of expertise.