The application is one of the basic procedures for bringing a dispute before the civil courts. It is less intimidating than a summons served by a court commissioner or than a referral This procedural act, which allows a case to be brought before a court without informing the opposing party in advance, is governed by precise rules. This procedural act, which allows a case to be brought before a court without first informing the opposing party, is governed by precise rules that have been significantly modified by the major reform of civil procedure in 2019. This article provides you with a comprehensive, up-to-date overview of the principles governing applications, from their various forms to their legal effects. Given the complexity of the formalities and issues involved, requesting the assistance of a lawyer competent in civil procedure is often an essential step in guaranteeing the admissibility and effectiveness of the process and controlling its consequences. financial.
General definition of the request and its fundamental role
The word "request" is used in many contexts, but its meaning in law is much more technical than in everyday language. It is an act writes and formalized, which is not limited to a simple request but constitutes the real starting point for a legal claim. It is essential to understand its different facets in order to grasp its full significance.
The query: beyond everyday language
In everyday language, an application is a request addressed to an authority. In legal terms, however, the term is becoming more precise: it is a procedural document by which a person, the plaintiff, refers a claim to a court. Unlike a simple letter, an application must comply with certain formal and substantive conditions in order to be valid, i.e. to produce legal effects and oblige the court to examine the claim.
Applications in international, criminal and administrative law
The application is not a tool exclusive to civil proceedings. In international law, it can be used to bring cases before courts such as the Court of Justice of the European Union. European or the Court European of human rights. In criminal proceedings, it can be used to obtain the annulment of an investigative measure. In litigation administrativeThis is the main method of bringing a case before the court. administrativeby example to contest a decision administrative which affects a public service. This universality demonstrates its central role in access to the courts, whether in matters of administrative or judicial.
The application in civil proceedings: a polymorphous document
In civil procedure, the term "application" covers several different realities. The main distinction is between the application that initiates the proceedings and those that are made during the course of the proceedings for specific claims, for example, a claim for damages. example to obtain authorisation to use an accelerated procedure (the fixed-date procedure). We should also mention the specific requests of the public prosecutor when the latter acts as joint or principal party. The study that follows focuses on the application as the initial act of referral to the court, the one that gives rise to the lawsuit.
The evolution of the application in civil procedure: impact of the 2019 reform
Civil procedure underwent a major transformation with the 2019 Justice Reform Act and its implementing decree no. 2019-1333 of 11 December 2019. One of the main aims of this reform was to simplify and rationalise the methods of bringing cases before the courts, giving a new and central place to the application.
The application before and after 1 January 2020
Before 2020, there were several ways of bringing proceedings, including summons, petition, joint petition and declaration at the court registry. This diversity was a source of complexity. The reform has simplified this landscape by doing away with the "déclaration au greffe", which was a simplified method of bringing proceedings for small claims. Now, alongside the writ of summons, the application has become one of the two main methods of bringing a case before a civil court at first instance.
New areas of application and skills
The reform has clarified and extended the scope of the application. It has become the ordinary method of bringing a case before the court in disputes where the claim does not exceed €5,000. It also remains the preferred method in many specific matters laid down by law, such as non-contentious matters (adoption, change of matrimonial property regime) or before certain specialised courts such as the industrial tribunal.
Precise impact of decree no. 2019-1333 on the procedure
In addition to simplifying the methods of referral, the 2019 decree has had a concrete impact on the application procedure. In particular, it has unified the penalties for irregularities. Previously, an error in a joint application could result in its inadmissibility, while an error in a unilateral application would result in its nullity. Today, failure to comply with the mandatory information is punishable by nullity on the grounds of formal defect, which presupposes proof of a grievance in order for the penalty to be imposed (in accordance with the French Code of Civil Procedure).art. 114 of the Code of Civil Procedure), thereby harmonising the treatment of procedural errors.
The different types of request: unilateral, joint and specific requests
An application in civil proceedings takes two main forms: unilateral, when it is made by a single party, and joint, when it is made by agreement between the two parties. In addition to these two forms, there are specific procedures such as the order on motion, which should not be confused.
The unilateral application: principles and identification of the defendant
The unilateral application is the most common form. It allows a case to be brought before the court without first informing the other party. The court clerk's office will then summon the defendant to the hearing. For this reason, the application must contain the full name and address of the defendant if it is a natural person, or its name and registered office if it is a legal entity, failing which it will be null and void.
The joint request: concept, scope and specific content
The joint application is the act by which the parties decide together to submit their disagreement to the judge. It must set out their respective claims, the precise points on which they disagree and the arguments of each party. It is particularly suitable when the parties agree on the principle of recourse to a judge but not on the resolution of the dispute. It can be used before a court of law or a commercial court, regardless of the amount of the claim.
Strategic choice between unilateral and joint applications
The choice between these two forms of application depends on the nature of the dispute and the relationship between the parties. A joint application presupposes dialogue and agreement on the need to bring the matter before the court, which can ease the contentious context and simplify the procedure. The unilateral application is, by its nature, better suited to conflict situations where no collaboration is possible. The main way of appealing against a decision handed down on application is by appeal, but specific remedies, such as opposition, exist in certain procedures, such as injunctions to pay.
Order on request: non-adversarial procedure
Referral to the court by petition should not be confused with the "on petition" procedure. The latter is an exceptional, non-adversarial procedure used when it is necessary to obtain a rapid decision without notifying the applicant. opposing partythus temporarily violating the adversarial principle. L'example A typical example is the request for a judicial commissioner to make a finding before evidence disappears, on the basis of thearticle 145 of the Code of Procedure civil. Le president of the court then makes an order based solely on the information provided by the claimant. The appropriate remedy is often a referral at withdrawal to restore the debate.
Conditions of validity and essential formalities of the application
For an application to be valid and effective, it must comply with strict conditions, both in terms of substance (who may act?) and form (how to act?). Failure to comply with these requirements may result in the nullity of the document and the failure of the entire procedure.
Substantive conditions: capacity and representation
To take legal action, the claimant must have the "capacity to take legal action". Unemancipated minors and adults under guardianship must be represented by their legal representative. Similarly, a legal entity (company, association) acts through its legal representative (manager, chairman), whose powers are defined in the articles of association and the by-laws.status of company law. A lack of capacity or power of attorney constitutes a substantive irregularity which may result in the nullity of the application without it even being necessary to prove any prejudice.public order.
Formal requirements: medium, information and transmission
The application, whether drawn up on plain paper, using a Cerfa form or in electronic form, must include the mandatory information listed in articles 54 and 57 of the Code of Civil Procedure. These include, in particular, full identification of the parties, the name and address of the claimant and the name and address of the court.object of the disputethe name of the court input and a list of supporting documents. It must be dated, signed and sent to the clerk's office of the court with jurisdiction so that the judge can make a decision. entered.
Penalties for irregularities: nullity and inadmissibility
An irregularity of form (omission of a statement, procedural error) is sanctioned by the nullity of the document, but on one condition: that the adversary proves that this error causes him prejudice (a "grievance"). On the other hand, a substantive irregularity (lack of capacity to act) may be raised at any time and does not require such proof. Finally, inadmissibility is a more severe sanction that puts an end to the claim, by example in the event of non-compliance with the obligation to attempt to resolve the dispute amicably beforehand.
Supporting documents and preparation of the application
The claim must list the documents on which it is based, usually by means of an attached "schedule of documents". Copies of these documents (contracts, unpaid invoices, letters of formal notice, etc.) must be attached. For claims before the Family Court (Juge aux affaires familiales - JAF) or for disputes under €5,000, where the procedure is often oral and without a lawyer, the clarity and relevance of the documents provided in the "bordereau des pièces" must be taken into account. file are decisive in convincing the judge.
Specific procedures and jurisdictional applications of the application
The use of the application and its rules vary according to the court seised and the matter concerned. Each court has its own specific features that you need to be aware of to avoid making mistakes.
Application to the court
For claims not exceeding €5,000, referral to the court by petition is subject, with certain exceptions, to a prior attempt at amicable resolution (conciliation, mediation). The document must mention the steps taken in this respect, failing which it will be inadmissible. The procedure is oral and representation by a lawyer is not compulsory.
Family applications: divorce and parental authority
Petitions are widely used in family matters. An application for divorce by mutual consent, when it has to go before a judge (in cases where a minor child asks to be heard), is made by means of a "single application". For other contentious divorces, the spouses may opt for a "joint petition". Many applications relating to parental authority (delegation, withdrawal) are also made by petition, with specific information required.
Applications to specialised and appeal courts
Cases are referred to the industrial tribunal by petition, whether the request is made by the employee or the employer. The formalities are precisely defined by the Labour Code. Before the court joint from rural leasesThe Code of Civil Procedure also provides for a petition to be lodged with the court, alongside a writ of summons.bailiff for specific disputes between landowners and farmers. Before the Court of Appeal, proceedings may be brought by a joint application by the parties, who must then be represented by a lawyer. In the event of appealspecific application rules also apply before the Court of Cassation.
Non-adversarial and specialised procedures (injunction, participatory)
The application is the sole means of initiating rapid and simplified procedures such as an injunction to pay (to recover a debt that is certain to be owed) or an injunction to do (to compel performance of an obligation). It is also used to bring a case before the court at the end of a participatory procedure, when the parties, assisted by their lawyers, have been unable to reach a full agreement.
The legal and strategic effects of civil procedure applications
Filing an application with the court clerk's office has major legal effects, both procedural and substantive. Understanding these effects is essential if you are to develop an effective litigation strategy and avoid losing your rights.
Procedural effects: initiation of proceedings and referral to the courts
Submission of the application to the court registry marks the start of the proceedings. It is on this date that the court is officially seised of the dispute. This act creates the "legal relationship of proceedings" between the parties and the court, and gives rise to the court's obligation to rule on the claim submitted to it.
Interruption of prescription and foreclosure: principles and exceptions
One of the most important effects of legal claim is the interruption of prescription and foreclosure periods. By bringing an action before a court, the claimant demonstrates his or her desire to assert his or her right and stops the passage of time that could extinguish the action. This interruptive effect is powerful: it is maintained even if the court seised lacks jurisdiction or if the act is annulled for a procedural defect. However, there are some notable exceptions: a request for an investigative measure before any trial (art. 145) or the application for an order for payment do not interrupt the limitation period.
Effects on the substance of the law and litigation strategies
The request also has an impact on the substantive right itself. It serves as formal notice to the debtor and causes default interest to accrue on the sum that will be due, which has an impact on financial for the debtor. From a strategic point of view, the petition is often perceived as less aggressive than the writ of summons, as it is not directly served by a court commissioner. It can be quicker and less costly. However, a summons provides a more formal and adversarial framework from the outset, which may be tactically preferable for complex disputes where you want to make a mark and take the initiative.
An application is a powerful procedural tool, but one that requires rigour and precision. If you are faced with the need to bring proceedings or respond to an application, our firm can help you. For a personalised analysis of your situation, contact our expert litigation lawyers.
Frequently asked questions
What is the main difference between a request and a summons?
The petition is filed at the court registry by the plaintiff, and it is the court that summonses the defendant. The summons is a document served on the defendant by a court commissioner (now known as a "commissaire de justice"). bailiff) before it is filed with the court, thus informing the other party before the case is even brought before the judge.
Do I have to hire a lawyer to file an application?
No, representation by a lawyer is generally optional for disputes before a court of law involving a claim of less than €10,000 and before the industrial tribunal. However, the assistance of a lawyer is strongly recommended to ensure the security of the proceedings and to optimise the outcome. financial of the dispute.
What happens if my request contains an error?
An error in the application, such as the omission of a statement, may result in it being declared null and void. In the case of a formal defect, invalidity will only be declared if the opposing party proves that the error has caused him prejudice, which may affect the validity of the application. judgment rendered. In the case of a substantive irregularity (e.g. lack of capacity), nullity may be declared without such proof.
How long does it take to file an application?
The length of time varies considerably, depending on the nature of the case and thestatus congestion of the court. Proceedings by application may be quicker for "small" disputes, but for complex cases, the time taken will be similar to that for proceedings initiated by writ of summons.
Can I submit an application online?
Yes, for a growing number of matters, it is possible to file a request by electronically electronically via the online portal "justice.fr", a public service digital, in particular for bringing cases before the family court or for applications before the court dealing with protection disputes.
What is the obligation to attempt to reach an amicable settlement before filing a claim?
For claims before the judicial court not exceeding €5,000 and for certain neighbourhood disputes (listed in thejudicial system), the imposes have tried to resolve the dispute amicably (via a court conciliator, mediator, etc.) before bringing the matter before the court. The application must mention these steps, failing which it will be declared inadmissible.
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