Article 82-1 of the French Code de procédure civile and challenge of the competence of the new judicial tribunal (tribunal judiciaire)
Decree n°2019-1333 dated 11 December 2019 (Article 2) has this year introduced a new Article 82-1 in the French Code de procédure civile, which is said to simplify incompetence exceptions (heading of the Section 2 of the said decree: the simplification of incompetence exceptions).
This new Article 82-1 came into force on 1 January 2020 and establishes a new derogatory scheme creating a possibility to challenge the competence of the judicial tribunal. The judicial tribunal was recently created with the merger of the TGI (Tribunal de Grande Instance) and the TI (Tribunal d’Instance), such jurisdictions dealing with civil matters. Due to the coronavirus Covid-19 sanitary crisis, legal practitioners did not really have the time to test this new regime.
As a general rule (Article 74 of the French Code de procédure civile), an incompetence exception has to be raised in limine litis, that is to say, at the first hearing, before any discussions on the ground of the case, and by way of principle, before the same judge ruling on the case. On the contrary, and by way of derogation, the new scheme sets up a possibility to raise an incompetence exception, before the first hearing, either the parties or the judge raising it. If trigged, the parties or their lawyers are informed right away by any means giving fixed date (date certaine). In this perspective, the file is transmitted to the registry (greffe) of the judicial tribunal, which in turn, transfers the case to a designated judge. The competence of this newly appointed judge may also be challenged, by him or the parties, during a period of 3 months, by the transfer of the case to the President of the judicial tribunal. According to the new regulation, the President of the judicial tribunal has to transfer the case to a new appointed judge, and such a decision cannot be challenged. However, the competence of this new appointed juge may be challenged before this new judge by the parties, and the decision ruling on the competence may be appealed within a period of 15 days, as of the date of the notification of the decision.
The President of the judicial tribunal appears to be the keystone of the scheme, which is in line with the role usually attributed to him, as already in charge for example of summary proceedings (e.g. référé). The fixed date (date certaine) and the 3 months timeframe appear to be crucial, and purport to avoid endless discussions on the competence.
However, and surprisingly, this new scheme creates a very sophisticated legal architecture, not to mention the potential right to call the case before the French Cour de cassation (Supreme Court). In such a context, these new rules may unfortunately be used to artificially challenge a procedure and lengthen it. An author has recently described this mechanism as a potential Trojan Horse, allowing dilatory procedures (Katia Bennadji, Dalloz actualité, 22 July 2020, « L’article 82-1 du Code de procédure civile : cheval de Troie au service de manœuvres dilatoires »). This remains true to a certain extent, as this new Article 82-1 has been introduced in a context where, on the contrary, a lot of other procedural rules are aimed at streamlining the procedure e.g. concentration of the legal means (concentration des moyens), estoppel or prohibition of dilatory procedures.
In a constant movement, the French Cour de cassation draws the outlines of the concentration of the legal means principle.
The French Cour de cassation (C. cass. civ. 2, 11 April 2019, n°17-31785), recently stated that the plaintiff, before any ruling on the case, has to expose all the legal means considered as the ground for the claim. This means that, in a same instance, an overruled legal claim cannot be raised again in connection with another ground based on the same object, as the one on which the tribunal has already definitely stated. According to this case law, the rule of the concentration of the legal means, uses the same underpinned concept as the fin de non-recevoir (i.e. res judicata pro veritate habetur), but is not an exception procedure as rather deals with the ground of the case.
It remains to be seen however how this case law and all the case law hereof, will be used by legal practioners to limit the import of this new Article 82-1. In this perspective, it is reasonable to think that they may wish to use the concentration of the legal means principle, also in connection with procedure exceptions, such as incompetence.
In addition, the estoppel theorie, albeit originally English law concept, is now part of the French legal system. In a considerably important decison, the French Cour de cassation, recognised and introduced into French law, this Anglo-Saxon concept (C. cass. Ass. Plen., 27 February 2009 (n°07-19.841)) and considers it as a fin de non-recevoir (i.e. a legal mean aiming at having declared the claim of the other party as not recevable). In this respect, the French Cour de cassation has stated that actions of the same nature based on the same conventions, opposing the same parties may give rise to a sanction, provided that a party kept contradicting itself, at the expenses of others. More specifically, the French Cour de cassation, Civ. 2, dated 15 March 2018 (n°17-21.991) reiterated this position, ruling that « (…) the principle according to which no one may contradict itself at the expenses of others, sanctions the procedural attitude consisting, for a party, during a same instance, to adopt contrary or incompatible positions leading the adversary in error as to its intentions ». Thus, it is reasonable to think that legal practioners will use, inter alia, the estoppel theory to limit the possibility to use incompetence exceptions. In addition, even if the contradiction may occur in the same instance, it cannot be excluded that a judge may wish to streamline the procedure and prevent a party from utilising incompetence exceptions several times, in a same context.
A judge would also have the possibility to use article 32-1 of the French Code de procédure civile, which states that a person acting in justice in a dilatory manner may be convicted to a civil fine up to 3.000 euros, without prejudice of damages that would be claimed. In that event, the amount related to the civil fine is paid to the French Trésor Public.
To remain in the real trend of the procedure regulation, i.e. constant equilibrium between defense rights and efficiency of the legal system, judges and legal practioners are in the position to put forward a strict construction of Article 82-1 of the French Code de procédure civile. Constructions rules are clear in this respect: exceptions or derogations have to be interpreted strictly, and the scheme created is created by way of exception. This means that each time a lawyer would invoke a competence exception on the basis of this new Article 82-1, the judge would have to conduct a teleological construction, in the view of maintaining a sufficient level of efficiency of the procedure, especially in a context where (i) ECHR (European Convention on Human Rights) already imposes an effective recourse in every steps of the procedure and (ii) numerous litigations deal with international matters, allowing the parties to raise incompetence exceptions, also on the ground of judicial international private law.
Up to date 22 July 2020.
The French Supreme Court in charge with private matters (Cour de cassation) expressly ruled on 15 March 2018 the criteria whereby it is forbidden to contradict oneself at the expense of others (expression which is considered as the equivalent of the English estoppel concept).
As far as case law is concerned, the estoppel concept was expressively used and named as such by the Cour de cassation on 6 July 2005 in the field of arbitration (Cass. civ. 1st, 6 July 2005). On 27 February 2009, the Cour de cassation (plenary session) opened the possibility to introduce the concept of estoppel by way of principle, if not, in the specific case (Ass. Plen., 29 February 2009).
In the decision dated 15 March 2018, the French Supreme Court states that “the collateral estoppel (la fin de non-recevoir) based on the principle that it is forbidden to contradict oneself at the expense of others penalises the procedure behavior which consists, for a party, within the same instance, to adopt contradictory or incompatible positions in conditions where the opponent is misled on the intentions of the said party”.
It might sound peculiar, for a French supreme Court, to use the English legal concept of estoppel without naming it as this legal concept is not inserted in the French Code de procédure civile as such.One can only see with obviousness the influence of Anglo-Saxon legal concepts. In this perspective, it has to be observed that the English criteria of estoppel were set out almost a century ago by Lord Birkenhead in the case Maclaine v Gatty  1 AC 376, 386 (see Ewan McKendrick, contract law, palgrave macmillan, for example 9th edition p. 92).
The rule of Macklaine v Gatty is based on the following sentence: “where A has by his words or conduct justified B in believing that a certain state of facts exists, and B has acted upon such belief to his prejudice, A is not permitted to affirm against B that a different state of facts existed at the same time” (Ewan McKendrick op. cit.). It can be asserted that the legal principle which underpins the rule is legal safety (even if loyalty and consistency are also part of the concept of Estoppel).
In this perspective, the rule is consistent with the existence of a legal order, where legal safety is crucial to its structure.
Up to date 15 March 2018
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