The French Judicial Order: Tribunaux Judiciaires, Cours d'Appel, and Cour de Cassation

The French ordre judiciaire (judicial order) is the system of courts with jurisdiction over private law disputes and criminal matters. The judicial order is distinct from the administrative order (ordre administratif), which has jurisdiction over public law disputes. The judicial order is organised hierarchically, with the Cour de cassation at the apex, the cours d’appel at the intermediate level, and the tribunaux judiciaires and specialised courts at the first instance level.

The Dualité des Ordres de Juridiction

French law is characterised by the dualité des ordres de juridiction (duality of court orders), which separates the judicial courts from the administrative courts. This separation originates in the revolutionary Law of 16-24 August 1790, which prohibited judicial courts from reviewing administrative acts. The principle has constitutional status and is a fundamental feature of French public law.

The Tribunal des conflits resolves jurisdictional disputes between the judicial and administrative orders. When both a judicial court and an administrative court claim jurisdiction, or when both decline jurisdiction, the Tribunal des conflits decides which court should hear the case. The Tribunal is composed of judges from the Cour de cassation and the Conseil d’État in equal numbers.

The Tribunal Judiciaire

The Tribunal judiciaire (T.J.) is the principal first-instance court for civil matters. Created by the Law of 23 March 2019 (the Loi de programmation 2018-2022 et de réforme pour la justice), the Tribunal judiciaire replaced the former Tribunal de grande instance (T.G.I.) and the Tribunal d’instance (T.I.). The reform simplified the court structure by merging the two former courts.

The Tribunal judiciaire has jurisdiction over all civil matters unless jurisdiction is expressly assigned to another court. It hears disputes concerning personal status, family law, property, contracts, and torts. The Tribunal judiciaire also has jurisdiction over certain criminal matters, acting as a criminal court in the composition of the Tribunal correctionnel for misdemeanours (délits) and the Tribunal de police for petty offences (contraventions).

The Juge des Contentieux de la Protection

The juge des contentieux de la protection (judge of protective matters) is a specialised judge within the Tribunal judiciaire who handles disputes relating to protective measures, consumer credit, and residential leases. The judge was created by the 2019 reform to replace the former juge d’instance and to provide specialised expertise in certain areas of civil law.

The judge of protective matters has jurisdiction over disputes relating to: protective measures for vulnerable adults (tutelle, curatelle, sauvegarde de justice); residential leases and housing matters; consumer credit and over-indebtedness; and certain other matters assigned by law. The jurisdiction of the judge varies depending on the amount in dispute and the nature of the matter.

Specialised Courts

The French judicial order includes several specialised courts. The Tribunal de commerce has jurisdiction over commercial disputes between merchants, disputes relating to commercial acts, and bankruptcy proceedings. The Conseil de prud’hommes has jurisdiction over individual employment disputes between employers and employees. The Tribunal paritaire des baux ruraux has jurisdiction over disputes relating to agricultural leases.

These specialised courts are composed of judges who are not professional magistrates but are elected by their peers. The Tribunal de commerce judges are business owners elected by other business owners. The Conseil de prud’hommes judges are employers and employees elected by their respective constituencies. The specialised courts apply the same substantive law as the ordinary courts but bring practical expertise to their respective areas.

The Cour d’Appel

The Cour d’appel (Court of Appeal) hears appeals from the first-instance courts within its territorial jurisdiction. The Court of Appeal re-examines the facts and the law and may confirm, reverse, or modify the lower court’s decision. The appeal is a voie d’achèvement (full appeal): the case is retried before the appellate court, which has the same powers as the first-instance court.

The Court of Appeal is organised into chambers (chambres), each specialising in a particular area of law, such as civil, commercial, social, or criminal matters. The Court of Appeal may sit in different compositions depending on the nature of the case. A single judge may hear certain cases, while others require a panel of three judges.

The Cour de Cassation

The Cour de cassation (Court of Cassation) is the highest court in the French judicial order. The Cour de cassation does not retry the case; it reviews the lower court’s decision for errors of law. The Cour may quash (casser) the lower court’s decision if it finds a legal error and may remand the case to a different court of appeal for reconsideration.

The Cour de cassation is divided into six chambers: three civil chambers, one commercial chamber, one social chamber, and one criminal chamber. The Cour also has a chambre mixte (mixed chamber) and a Assemblée plénière (plenary assembly) to resolve conflicts between chambers or to address particularly important legal questions.

The Cour de cassation distinguishes between two types of decisions. An arrêt de rejet (dismissal decision) confirms the lower court’s decision and ends the litigation. An arrêt de cassation (quashing decision) annuls the lower court’s decision and remands the case. The lower court to which the case is remanded is not bound by the Cour de cassation’s decision on the facts but is bound on the points of law decided by the Cour.

The Parquet

The parquet (public prosecutor’s office) is an integral part of the French judicial order. The parquet represents the public interest and exercises prosecutorial functions in criminal matters. The parquet is hierarchically organised, with the Procureur de la République at the Tribunal judiciaire level, the Procureur général at the Cour d’appel level, and the Procureur général près la Cour de cassation at the Cour de cassation.

The parquet is part of the magistrature (magistracy), but prosecutors are subject to hierarchical supervision by the Ministry of Justice. This has raised questions about prosecutorial independence, as the Minister of Justice may issue general instructions to prosecutors. The Constitutional Council has held that prosecutorial independence is a constitutional principle but that it is compatible with limited ministerial oversight.

The Conseil Supérieur de la Magistrature

The Conseil supérieur de la magistrature (CSM) is the constitutional body responsible for the discipline and appointment of magistrates. The CSM is composed of magistrates and non-magistrate members appointed by the President of the Republic, the National Assembly, and the Senate. The CSM makes recommendations for the appointment of senior magistrates and exercises disciplinary powers over magistrates.

The CSM’s role was strengthened by the 2008 constitutional reform, which gave it greater independence from the executive. The CSM now plays a central role in ensuring the independence of the judiciary and in maintaining the ethical standards of the magistracy.

The Judicial Map

The French judicial order is organised geographically. There are 164 Tribunaux judiciaires, 35 Cours d’appel, and one Cour de cassation. The territorial jurisdiction of each court is determined by law. The distribution of courts across the territory is designed to ensure reasonable access to justice for all citizens.

The judicial map is periodically reformed to adapt to demographic changes and to improve efficiency. The 2019 reform reduced the number of first-instance courts and introduced new mechanisms for case management. The reform aimed to reduce delays in the resolution of disputes and to improve the quality of judicial decisions.