CODE OF CIVIL PROCEDURE IN FRANCE
This article will provide guidance on the Code of Civil Procedure in France. In accordance with the principles of civil law, the state administers the French legal system. Historically, there have been two main categories of French law: public law and private law.
Questions concerning the interaction between administrative entities and private people are governed by public law. On the other hand, private law deals with anything not covered by public law and encompasses solely business and civic affairs.
France has a three-tiered judicial system for cases involving private and commercial law. The business courts (tribunaux de commerce) and the civil courts (tribunaux d'instance and tribunaux de grande instance) are the first instance courts. When the amount in issue is more than EUR10,000 and the legislation does not specifically bestow jurisdiction on another court, the tribunal de grande instance (major first instance civil courts) has comprehensive jurisdiction over private disputes. Disputes involving merchants, credit institutions, commercial firms, and commercial deeds are within the purview of the commercial courts (such as promissory notes, bills of exchange, and so on).
It is important to consider France's different legal backgrounds and court requirements. Consequently, a private France process service agency like Undisputed Legal is preferable to serve documents in this jurisdiction since we assure our clients of the timeline and security of international documents.
In contrast to traditional courts, commercial court justices are not appointed but chosen by their peers from within the business sector. Business courts only have little authority. Appeals from judgments made by the civil and commercial courts are heard by the courts of appeal (Cours d'appel) at the second instance level.
The Court of Cassation is the supreme court in economic and social cases (Cour de cassation). The Court of Cassation reviews decisions made by subordinate courts for mistakes in law and procedure but not in reality. The French court system tends to be confrontational in business disputes as opposed to being cooperative in criminal cases. The burden of evidence is always on the one making the allegation. The judge acts as a referee throughout the trial and evaluates the evidence presented. In French law, there is no need for either disclosure or discovery.
The French Courts' subject matter jurisdiction is established by the norms governing judicial procedure and individual statutes. Each court's rules and the following clauses will establish which court has jurisdiction based on the amount of the demand and the jurisdictional level below which no appeal would lie.
Only the court with jurisdiction over the property's specific location may rule on real estate disputes. A plaintiff may file a lawsuit before a court in a neighboring district if the judge or law representative is a party to litigation within the jurisdiction of the court in which he sits in office. As long as the questions raised are not beyond the exclusive jurisdiction of another court, any court to which an action is referred over which it has jurisdiction will hear and decide all the grounds of defense, even if they involve an interpretation of a contract.
ORIGINATING ACTION IN FRANCE
The originating action must be brought by a writ of summons or by delivery of a joint petition at the clerk's office of the court, except in cases where the proceeding is instituted by petition or by declaration handed over to the clerk's office of the court, or where a voluntary presentation of the parties may institute the proceeding before a judge. The writ of summons, delivered by a bailiff, is the legal process by which a plaintiff orders a defendant to appear in court. However, the action has to go via the central authority for international service of the process. Entering your documents with a trusted process server like Undisputed Legal is preferable since process services often have to go through multiple routes. Our process servers serve all legal documents, including summons and complaints, divorce papers, family court documents, subpoenas, citations, small claims court cases, orders to show cause, petitions, discovery documents, evictions, landlord/tenant notices, motions, and more.
The joint application is the standardized form via which the parties present their claims, disputes, and reasons to the court. Suppose the parties have not done so since the dispute began. In that case, they might endow the judge with the mission of an amiable compounder via the joint application or bind him by such definitions and points of law to which they wish to confine the hearing.
The Code of Civil Procedure (Code de procédure civile) contains most of the arbitration laws in France (CCP). According to French law, every dispute between parties is subject to mediation. Any central authority does not govern this process; therefore, interested parties may approach NGOs for assistance.
PRE-ACTION CONDUCT IN FRANCE
When submitting a case to a court in a civil or commercial matter, the parties must detail their efforts to resolve the dispute outside of court. The court may suggest conciliation or mediation resolve the issue if the parties fail to show they have exhausted all other avenues for doing so. It is necessary to look into the specifics of the service that mediation would require. Often the bailiff is unable to provide service due to an overload of tasks or other restrictions. Consequently, involving the capabilities of a private process service agency like Undisputed Legal should be preferable.
The plaintiff initiates the case by having the bailiff deliver an assignment (summons) to the defendant. The claim is laid out in detail in the writ of summons, and the defendant is ordered to appear in court to answer the allegations. A party will need to provide a list of proof in their writ. After the writ has been served, the attorney for the claimant will submit a copy to the court.
Both parties may file an application with the commercial courts (tribunaux de commerce) or the major first-instance civil courts (tribunaux de grande instance) by serving a writ of summons on the other. When serving a corporation, the proper address is the company's headquarters; when serving a person, the proper address is their residence. When taking a case to court for a business disagreement, the summons must be sent to the defendant no less than fifteen days before the scheduled trial date. In addition, it must be submitted to the appropriate commercial court's registry no later than eight days before the scheduled hearing.
A claimant may get a decision quickly using the fixed date process in the primary first-instance civil courts. The claimant is responsible for submitting documentation that supports the claim of urgency. A writ of summons may be used to commence an expedited proceeding in the commercial courts at short notice.
A presiding judge is appointed after the writ of summons is served to ensure the proceedings are conducted in accordance with the law, particularly with respect to the timely filing of pleadings and, if necessary, the production of relevant documents. In the highest civil courts of first instance, the presiding judge is known as a judge de la mise en état; in the appellate courts, he or she is known as a conseiller de la mise en état; and in the commercial courts, he or she is known as a juge rapporteur.
Before the disputed issues tribunaux de grande instance and the court of appeal, electronic submission of papers is required. Before the commercial courts, the process is oral. But when attorneys are involved, the procedure is the same as in the larger civil courts of first instance; written pleadings are filed, and a date is set for the submission of briefs by the presiding judge.
A judgment will be enforced from the moment it acquires the force of res judicata (that is, it is final and no longer subject to appeal), except where the debtor is granted a grace period or the creditor is granted provisional enforcement (exécution provisoire). Therefore, generally, a local court judgment will be enforceable at the expiry of the time limit for the appeal when no appeal is filed.
ENFORCEMENT OF A JUDGEMENT IN FRANCE
There are two main legal instruments regulating the law applicable to a contract [A.] the Rome Convention on the law applicable to contractual obligations (1980/934/EEC) (Rome Convention), which applies to contracts entered into before 17 December 2009 and [B.] Regulation (EC) 593/2008 on the law applicable to contractual obligations (Rome I), which applies to contracts entered into on or after 17 December 2009.
The Rome Convention and Rome I harmonized the rules for establishing the law applicable to contracts in the EU. The principle set out in those instruments is that the parties are free to choose the law applicable to their contract. In the absence of a party's choice, the contract will be governed by the law of the country with which it is most closely connected.
Where all other elements relevant to the situation at the time of the parties' choice are located in a country other than the country whose law has been chosen, the parties' choice will not prejudice the application of the mandatory provisions of the law of that other country (Article 3(3), Rome Convention. The French courts will not enforce contractual provisions that go counter to these standards since they threaten France's standing in the international community. Regulation (EC) 864/2007 on the law applicable to non-contractual commitments (Rome II) governs the choice of law for non-contractual claims inside the European Union.
ENFORCEMENT OF FOREIGN JUDGEMENTS IN FRANCE
As long as they do not undermine the required geographical jurisdiction of a French court, choice of jurisdiction provisions are generally recognized as legal in France. Regarding conflicts inside the European Union, Regulation (EC) 44/2001 on jurisdiction and the recognition and execution of judgments in civil and commercial proceedings is the relevant legal instrument (Brussels Regulation).
The Brussels Regulation establishes that a member state's court shall have exclusive jurisdiction over any dispute arising out of or relating to any legal relationship between parties where one or more parties is domiciled in the EU. One major modification was made to the Recast Brussels Regulation. In the event of a dispute, the parties agree that the courts of the member state they have selected shall have jurisdiction over the matter, even if their actual residence is outside of the European Union. Furthermore, suppose an EU member state's courts are designated in a jurisdiction agreement. Such an agreement will be given exclusive jurisdiction unless substantively invalid under that member state's law.
If the foreign court is inside the EU, the European Community Regulation (EC) No. 1393/2007 on serving judicial and extrajudicial documents in civil and commercial disputes applies to service in this case. This Regulation streamlines the procedure for establishing transmission and reception agencies in each member state. France's principal receiving agency is the National Association of Bailiffs (Chambre Nationale des Huissiers de Justice). Service may be refused if the papers are not translated into either the agency's working language or the official language of the receiving member state.
Our private process servers are comfortable serving process across the globe, and France is no exception. We are well acquainted with both international legal requirements as well as domestic. Consequently, it is important to note that French procedure differs from the foreign court's jurisdiction outside of the European Union. Still, we are capable of serving process compliant with the requirement of a country that is a signatory to the 1965 Hague Convention for the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (Hague Service Convention). To facilitate the transfer of judicial and extrajudicial documents from one state party to another for service in the latter, the Hague Service Convention specifies the routes of transmission to be employed. The French Ministry of Justice houses the Bureau du droit de l'union du droit international privé et de l'entraide civile, which is the country's top authority on private international law and mutual assistance. For proper processing, certain centralized agencies may insist that papers be written in, or translated into, the official language or one of the official languages of the state to which they are being sent.
Suppose the jurisdiction in question is not a signatory to the Hague Service Convention and is situated outside of the European Union. In that case, the appropriate guidelines are laid forth by the French CCP. Simple notice or service by a bailiff will suffice in the case of foreign proceedings. When sending a notice or serving legal documents, it must be done in the language spoken in the country of origin. French authorities may refuse to request notice or service if they believe it would compromise the country's security or sovereignty. When the whereabouts of the addressee is unknown, the bailiff may document the futility of further attempts to contact the individual in order to establish service.
Any decision handed down in one member state must be recognized in any other member state without further process necessary. Judgments issued by courts in EU member states are no longer subject to exequatur procedures according to the Recast Brussels Regulation. But if specific circumstances are satisfied, the Recast Brussels Regulation establishes many reasons for rejection of recognition and enforcement (for example, if the judgment is manifestly contrary to the public policy provisions of the relevant member state).
The convention requires that the request form is in either English or French. The form is available in a bilingual format, but French authorities are reluctant to accept a form completed in English only. For practical reasons, it is recommended that a French translation of the request, summary, and certificate of service part of the form accompany the completed form. The translation does not have to be certified.
Upon receipt of a request, the French Central Authority refers it to the appropriate “Procureur Général” (the equivalent of a U.S. District Attorney), who assigns it to the local police for service. There is no charge for service if made through the French Central Authority and no charge for the return of a certificate for service. This process takes several weeks.
The French Ministry of Justice has no objection to service being made by a French “huissier” (an official process server licensed by the government). A fee will be charged at rates set by the government.
Documents can be faxed at (800)-296-0115, emailed to firstname.lastname@example.org, mailed to 590 Madison Avenue, 21 Floor, New York, New York 10022, or dropped off at any of our locations. We do require pre-payment and accept all major credit and debit cards. Once payment is processed, your sales receipt is immediately emailed for your records.
Drop-offs must call and make an appointment first to be added to building security to permit access to our office. Documents for service must be in a sealed envelope with payment in the form of a money order or attorney check (WE DO NOT ACCEPT CASH) payable to UNDISPUTED LEGAL INC.; Our receptionist receives all documents.
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FOR ASSISTANCE SERVING LEGAL PAPERS IN FRANCE
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1. The tribunaux d'instance and the tribunaux de grande instance have been combined into a single judicial system by Law No. 2019-222, which came into effect on March 23, 2019.
2. In addition to the court in the defendant's residence, the plaintiff may also choose to bring his case before the court of the place of actual delivery of the chattel or the place of performance of the agreed service in the case of a contract; the court of the place of the event causing liability or the one in whose district the damage was suffered in the case of a tort; the court of the place of the event causing liability or the one in the district in which the damage was suffered in the case of a tort and contract.
3. The writ of summons must, under penalty of nullity, include the following information in addition to that required for processes served by bailiffs:
- a reference to the court before which the action is brought;
- the object of the action with a statement of the arguments;
- a statement that, unless the defendant appears, he will risk rendition of a judgment against him solely on the basis of proof furnished by his adversary;
4. Nonetheless, the following topics may not be removed from the exclusive jurisdiction of the French courts:
- A reference to one's own private situation.
- Requiring action in France.
- Land and buildings.
- The legal framework governing the employment relationship.
5. Beginning January 10, 2015, the Brussels Regulation was superseded by Regulation (EU) 1215/2012 on jurisdiction and the recognition and execution of decisions in civil and commercial proceedings (Recast Brussels Regulation). On or after January 10, 2015, the Recast Brussels Regulation will govern all judicial procedures commenced, authentic documents duly written or registered, and judicial settlements authorized or finalized.
6. The parties' ability to choose their court system is constrained by many clauses in both treaties, including:
- Laws governing exclusive jurisdiction in cases involving challenges to the constitutionality of a company's formation or dissolution, intellectual property right registration or enforcement, and tenancies in real property.
- Insurance, consumer, and employment agreements
7. This foreign court is situated in a country that is not a signatory to the Hague Convention on the Recognition and Use of Foreign Court Judgments in Domestic Proceedings. The CCP of France is being used. The public prosecutor in the area where the request will be carried out will receive the request from the Ministry of Justice. Assuming the foreign court has not specified how the request should be carried out, it will conform with French legislation. If the court grants permission, the parties and their representatives (including any foreign nationals they may have) may interrogate the witness. The language of questioning is French or a translation thereof. A judge has the authority to deny a motion.
8. Regulation (EU) 1215/2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial proceedings allows for the recognition and execution of judgments made by courts located inside the European Union (Recast Brussels Regulation).
9. Addresses can be obtained by writing to:
Chambre Nationale des Huissiers de Justice
Service des Actes Internationaux
447, rue de Douai
75009 Paris, France
Tel : 33-1-49 70 12 90 – Fax : 33-1-40 16 99 35