Opposition is an ordinary legal remedy that allows a defaulting party to have a default judgment set aside. Unlike an appeal, it brings the case back before the same court. Its special feature lies in its devolutive effect, which brings about a genuine revival of the proceedings.
1. Referral to the court and its role
The competent judge
The opposition is lodged with the court that rendered the decision by default. This principle applies whether the court is ordinary or special, first or second instance.
Article 572, paragraph 1, of the Code of Civil Procedure states that the opposition "calls into question before the same judges, the points judged by default for a new ruling on the facts and the law". This rule does not mean that the judges must be physically the same. A Court of Cassation ruling of 31 January 1912 clarified this point.
The question of the court's impartiality
The fact that the same court is deciding the case twice raises the issue of impartiality. The Court of Cassation has ruled in favour of the conventionality of this procedure.
In a judgment of 5 February 1997, the Second Civil Chamber ruled that the principle of impartiality was not infringed by the opposition procedure. The European Court of Human Rights takes a more nuanced view: it considers that there is a breach of impartiality if the president of the court is the same as at first instance and the decision is not subject to review by a judicial body (ECHR, 26 August 1997, De Haan v the Netherlands).
Admissibility of the objection
The court must verify the admissibility of the opposition before examining the merits. Grounds for non-admissibility may be raised by the original claimant or by the court of its own motion where they are a matter of public policy.
Article 125 of the Code of Civil Procedure requires the court to raise of its own motion any grounds for dismissal arising from failure to observe the time limits within which appeals must be lodged.
2. Continuation of the initial proceedings
Continuation of the primitive instance
The opposition does not initiate a new proceeding, but causes the initial proceeding to be continued. This principle has consequences for limitation periods.
The interruption of the limitation period caused by the initial summons continues until the new decision is handed down. A ruling by the Paris Court of Appeal on 2 March 1893 confirmed this.
Maintaining the procedural status of the parties
Article 576 of the Code of Civil Procedure provides that "the case shall be investigated and judged in accordance with the rules applicable before the court that handed down the decision against which opposition has been lodged".
The parties therefore retain their procedural status from the original proceedings. The plaintiff in the opposition remains the defendant in the action, and the defendant in the opposition remains the plaintiff in the action.
Consequences for the burden of proof
This rule has a direct impact on the burden of proof. In a ruling dated 3 April 1979, the French Labour Court reiterated that the original claimant must always prove that his claim is well-founded.
The only exception: if the defendant submits a counterclaim, he bears the burden of proof for that claim.
3. The extent of the devolutive effect
Total reversal of the initial decision
The opposition has a global devolutive effect. The court is seized of all the points of contestation examined during the initial proceedings.
This principle makes it possible for a decision to be more severe for the opposing party than that rendered by default. The Paris Court of Appeal confirmed this in a ruling dated 7 May 1954.
Full substantive review
The court must conduct a complete new examination of the case. It assesses the arguments on the day it renders its second decision, and not on the day of the default judgment.
A ruling by the Orléans Court of Appeal (7 November 1884) established that any new circumstances arising since the default judgment must be taken into account.
Pleas in law submitted by the defendant and the plaintiff
The defendant (opponent) may contest any part of the decision, put forward any formal or substantive arguments, and even argue that the court does not have jurisdiction.
As for the original claimant, he may submit additional claims (article 65 of the Code of Civil Procedure) and repeat the rejected claims if the claims arise from the same cause of action and are indissociable.
4. The court's powers
Investigative measures
The court has ordinary investigative powers. It may order any investigative measure, even if measures had already been ordered in the initial proceedings.
If the parties fail to act, the court may apply articles 469 and 470 of the Code of Civil Procedure to terminate the proceedings.
Provisional enforcement may be discontinued
If the default judgment was subject to optional provisional enforcement, the court may stay it under article 524 of the Code of Civil Procedure.
On the other hand, when provisional enforcement is automatic, it cannot be stopped until the decision has been revoked. An appeal may then be lodged with the First President of the Court of Appeal.
Rules on costs
The rules on costs are now aligned with the ordinary law set out in articles 695 to 725 of the Code of Civil Procedure.
Article 696 awards costs to the unsuccessful party, but allows the court to award all or part of the costs to the other party by reasoned decision.
To master this complex procedure, a defendant sentenced in absentia should consult a lawyer. The time limits are short and the rules subtle. A procedural error may render the opposition inadmissible, leaving the default judgment final.
Our firm can analyse your situation, determine whether an opposition is appropriate and support you in this procedure. Contact us for an initial discussion.
Sources
- Code of Civil Procedure, articles 571 to 578, 695 to 725
- Court of Cassation, 2nd Civil Division, 5 February 1997, no. 95-13.504
- ECHR, 26 August 1997, De Haan v the Netherlands
- Cour de cassation, 31 January 1912, DP 1912. 1. 323
- Paris Court of Appeal, 2 March 1893, DP 1894. 2. 210
- Paris Court of Appeal, 7 May 1954, JCP 1954. IV. 104
- Court of Cassation, Social Division, 3 April 1979, No. 77-41.667
- CADIET and JEULAND, Droit judiciaire privé, 8th ed. 2013, LexisNexis
- DESDEVISES, Jugements par défaut et opposition, J.-Cl. Pr. civ. fasc. 540
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