Article Contentieux - Arbitrage - Droit pénal des affaires | 31/08/17 | Marie Danis Maxime Cléry-Melin
Further to the Decree of 6 May 2017 which was issued pursuant to the Act on “Justice in the 21st Century”, the legal rules governing appellate procedure in civil matters are amended in a substantial way. Below is an overview of the most significant changes involved, on the eve of its entry into force.
In a nutshell, the scope of appeals must now be precisely determined, must list all the claims to be determined from the onset and be lodged within specified time limits using a predefined form. The rules relating to specific procedures have also been amended to fasten and enhance the efficiency of the process. If such changes are consistent in theory with the new definition of the appeal – as the procedural way to challenge first-instance court’s reasoning, yet in practice, they require from unsuccessful litigants to act with unprecedented anticipation and responsiveness by studying thoroughly the challenged decision and identify what claims to submit to the Court of Appeal.
In the wake of the previous reforms of 2009 and 2010 inspired by the Magendie report, the stated aim of the reform is to reduce the courts’ backlog.
The first major change is the re-definition of the appeal itself, as follows: “The aim of the appeal is, by challenging the judgment issued by a first-instance court, to obtain that it be reformed or overturned by the Court of Appeal”. The appeal is no longer construed as a “second judgment” but rather as a reviewed or reformed judgment, which would ensure a better administration of justice.
By consequence, the appeal becomes specific and the notice of appeal must expressly indicate which provisions of the first-instance judgment are challenged. The scope of the dispute referred to the Court of Appeal is thereby defined, by the appellant, upon filing the notice of appeal (subject to invalidity of the appeal) and by the other parties, upon submitting their initial written brief. Only where the appeal seeks that the judgment of first instance be overturned, or where the matter in dispute is indivisible, will the Court of Appeal be seized of the full scope of the dispute that was decided at first instance (full “devolutive” effect): what used to be the rule now becomes the exception.
The second major change is the new principle of “concentrated” claims, which goes with the end of a general, undefined appeal. Now, “subject to automatic invalidity, the parties shall submit, upon filing their first brief (…), all of their claims on the merits”. Accordingly, it is no longer possible to extend the scope of the Court of Appeal’s referral in the course of the proceedings, nor to challenge any provision of the judgment of first instance which would not have been included in the notice of appeal. New factual or legal arguments can nonetheless be raised in the course of the appeal proceedings, as the restriction only applies to claims. It is also possible to raise new claims in reply, including to seek the dismissal of another party’s claims.
Thirdly, the parties’ briefs, both in litigation and informal appeals (à titre gracieux), are also now subject to new requirements and must follow a set plan, which includes: (i) a summary of facts and proceedings, (ii) a statement of the provisions of the decision of first instance which are challenged on appeal; (iii) a detailed presentation (“discussion”) of claims and legal arguments; and (iv) an operative section (“dispositive”) summarising the claims. Any claim which would not appear in the operative section despite being discussed in the other sections of the brief, or any argument which would not be developed in the detailed presentation (“discussion”), will not be considered by the Court. These requirements, which are already met by many attorneys in their ordinary practice, are now codified.
Fourthly, the time limits within which the parties must file their briefs, in ordinary appeal proceedings, have also been aligned, with the respondent in the main claim, the respondent in a cross-appeal (“appel incident”) or in a cross-appeal by a third party affected by the proceedings (“appel provoqué”), and the third-party intervener (“intervenant volontaire”) being subject to the same 3-month limit as the appellant to file their respective brief. This rule is however subject to exceptions, for example where mediation is ordered, resulting in an interruption of the time limit until the mediator’s assignment is completed. This also illustrates how the legislator seeks to encourage the recourse to alternative dispute resolution methods, as already shown in the Act on “Justice in the 21st Century”. Yet time limits are interrupted only by the filing of briefs which clearly state the subject matter of the dispute, or raise procedural objections (“exceptions de procédure”), grounds for dismissal of the action (“fins de non-recevoir”) or any such other procedural issue (“incident”) capable of putting an end to the action.
Lastly, the rules relating to emergency procedure also have been substantially amended. This procedure is no longer limited to urgent matters, appeals lodged against decisions rendered in summary proceedings or by the pre-trial judge (“juge de la mise en état”), but is also applicable to decisions rendered by courts “ruling in summary proceedings” under Article 492-1 of the Code of civil procedure. It is now subject to very short deadlines, as both the appellant and the respondent are required to file their briefs within one month. Also, the notice of appeal must now be served within 10 days of the notice setting the hearing date.
Said changes will require, both from the parties and from their counsel, great responsiveness and work as a close team. More importantly, the decision of first instance will need to be analysed thoroughly, using this evaluation grid, so as to allow the decision-makers of each party to determine their position within the new procedural time limits.
 Decree no. 2017-891 of 6 May 2017 on pleas of lack of jurisdiction and appeals in civil matters
 Act no. 2016-1547 of 18 November 2016 for the modernization of justice in the 21st Century
 Fast and high-quality justice process before the court of appeals: Report by the French Minister of Justice and Keeper of the Seals, Jean-Claude Magendie, 2008
 French Code of civil procedure, new article 542
 French Code of civil procedure, new article 901, 4°
 French Code of civil procedure, new article 562
 French Code of civil procedure, new article 910-4
 French Code of civil procedure, new article 954
 French Code of civil procedure, new article 908, 909 and 910
 French Code of civil procedure, new article 910-2
 French Code of civil procedure, new article 910-1
 French Code of civil procedure, new article 905
 French Code of civil procedure, new article 905-2
 French Code of civil procedure, new article 905-1