The judgment has been delivered. Somewhere in the operative part, two lines determine what each party will pay beyond what they lost or won on the substance: the order as to costs (depens), and the award under Article 700 of the Code of Civil Procedure. For the winner, these two lines determine how much of their procedural and legal expenses they will recover. For the loser, they set the real cost of the case, often heavier than the principal award. Yet the difference between these two mechanisms remains poorly understood, even by practitioners – when it determines the procedure to follow, the amount to expect, and the available remedies.
Costs and Article 700: do not confuse them
The Code establishes two distinct regimes with opposing logics. Costs (depens) are limitatively listed procedural expenses, whose reimbursement is quasi-automatic for the winning party. Irrecoverable expenses under Article 700 are everything else – principally lawyer’s fees – and their award is discretionary. The court rules “having regard to equity or the economic situation of the party ordered to pay,” and its power is sovereign.
The practical consequence is twofold. First, the amounts do not cumulate in the same way: costs are quasi-incompressible; Article 700 is always negotiable downward – or even refused. Second, the recovery procedure differs: costs go through administrative verification before the registry; Article 700 is enforced like any pecuniary award in the judgment.
Costs: a limitative list and an administrative recovery
Costs correspond to the expenses incurred for the proceedings to exist materially. Article 695 gives the list, which is limitative: anything not explicitly listed is excluded.
Principal items: registry fees and taxes; translation costs of acts required by the proceedings; witness indemnities; expert fees (often several thousand euros in technical cases); tariffed fees of enforcement officers (commissaires de justice); the advocacy fee (droit de plaidoirie) fixed at EUR 13 per hearing.
What is not on the list is not costs. Lawyer’s fees are excluded – this is the most important point. Travel expenses, private technical consultant fees, photocopying and archiving costs are likewise excluded. They are “expenses not included in costs” and can only be recovered, if at all, under Article 700.
Who pays: the rule and its exceptions
Article 696 states the rule: the losing party is ordered to pay costs. The court may, by reasoned decision, allocate all or part to another party. The reasoning must explain why the normal allocation is displaced.
Article 700: irrecoverable expenses and the court’s sovereign power
Article 700, as amended by Decree No. 2022-245 of 25 February 2022, organises reimbursement of expenses not included in costs. The court awards “the sum it determines, in respect of expenses incurred and not included in costs.” Lawyer’s fees are at the centre of this sum: they are the reason Article 700 was created and, in practice, constitute its essence.
The key is the word “determines.” The court does not reimburse fees on invoice: it sovereignly fixes an amount it considers equitable. This amount may be lower, sometimes much lower, than the amount actually spent. There is no official scale, no calculation grid, no coefficient. Amounts awarded vary considerably between courts, judges, and cases.
Since the 2022 reform, parties may expressly produce supporting documents. Attaching the lawyer’s fee invoice to submissions is no longer bold – it is a reflex that significantly increases the amount obtained.
The equity or economic situation corrective
The court “has regard to equity or the economic situation of the party ordered to pay.” It may even, of its own motion, hold that no such award is appropriate. This corrective is the safety valve: it allows the court to set aside an award that, while technically justified, would be concretely inequitable. In practice, it operates more often to reduce than to eliminate.
Requesting Article 700 properly: the pitfalls
First pitfall: simple omission. Article 700 is never awarded of the court’s own motion: it requires a request, formulated in submissions, quantified, and based on a legal foundation. No request, no award.
Second pitfall: failure to renew. Article 700 must be requested procedure by procedure, before each court. A request at first instance has no effect on appeal: it must be reformulated in the appellate submissions.
Third pitfall: unquantified or unjustified request. A lawyer requesting “a sum under Article 700” without specifying the amount relies entirely on the court’s discretion, which typically awards little. A quantified request, accompanied by the fee invoice, provides the court with an objective basis.
The lawyer’s direct recovery (Article 699)
Article 699 allows the lawyer who has personally advanced costs, in matters where legal representation is mandatory, to recover them directly against the losing party. The request must be made expressly before the close of hearings, on pain of inadmissibility.
Recovering costs: verification, notification, forced recovery
Obtaining an order as to costs on paper does not suffice. A specific procedure transforms the mention in the operative part into an effectively payable sum:
- Judgment: the operative part orders costs and, where applicable, an Article 700 sum.
- Bill of costs: the lawyer prepares a detailed account, item by item, conforming to Article 695.
- Verification by the registrar: the account is checked and a verification certificate issued (Articles 704-705).
- Notification: the certificate is notified to the losing party by registered letter. A one-month challenge period opens (Article 706).
- Expiry of the challenge period: the certificate becomes enforceable with the addition of the enforcement formula (Article 707).
- Enforcement measures: the creditor instructs an enforcement officer for seizure.
The key distinction: the Article 700 award is enforced like any sum in the judgment (through service of the judgment); costs stricto sensu follow this specific verification procedure. Confusing the two wastes time and money.