Institution of Proceedings in France: Assignation, Requête, and Standing

The institution of proceedings in French civil procedure is governed by the Code de procédure civile (CPC), which establishes the methods by which a lawsuit is brought before the court and the conditions under which a person may bring a claim. French law recognises several methods of instituting proceedings, the most common being the assignation (writ of summons) and the requête (application). The law also establishes the requirements of standing (intérêt à agir) and capacity (capacité) and the rules governing representation.

Standing (Intérêt à Agir)

Standing to bring a civil action is governed by Article 31 of the Code of Civil Procedure, which provides that an action is open to any person who has a legitimate interest in the success or rejection of the claim. The interest must be: legitimate (not contrary to law or morality); personal (the claimant must have a direct interest in the outcome); and existing (not hypothetical or contingent at the time of the claim).

The requirement of standing is broadly interpreted by the French courts. The interest need not be pecuniary; moral interests, such as the protection of reputation or the enforcement of a right, are sufficient. Associations and other collective entities may have standing to bring claims that affect their collective interests.

Capacity

The claimant must have legal capacity (capacité) to bring a claim. Natural persons have capacity to sue from the age of majority (18 years). Minors and protected adults are represented by their legal representatives (parents, guardians, or curators). Legal persons (companies, associations, and public bodies) have capacity to sue through their legal representatives.

The lack of capacity may be raised by the parties or by the court at any stage of the proceedings. If the claimant lacks capacity, the claim is inadmissible. The failure to raise the lack of capacity in a timely manner may result in the waiver of the objection.

Representation

The parties may be represented by a lawyer (avocat) or may represent themselves. In certain cases, representation by a lawyer is mandatory. Before the Tribunal judiciaire, representation by a lawyer is generally required for claims above a certain amount. Before the Cour d’appel, representation by a lawyer is mandatory. Before the Conseil de prud’hommes and the Tribunal de commerce, the parties may represent themselves or be represented by a lawyer or by other authorised persons.

The lawyer represents the client’s interests and exercises the procedural rights of the client. The lawyer has the authority to make procedural decisions, to sign procedural documents, and to receive service of documents. The lawyer’s mandate is governed by the contract between the lawyer and the client.

L’Assignation

The assignation (writ of summons) is the most common method of instituting proceedings. The assignation is a document prepared by the claimant’s lawyer and served on the defendant by a huissier de justice (bailiff). The assignation must contain: the name and address of the court; the name and address of the parties; the subject matter of the claim; the legal grounds for the claim; and the date of the hearing.

The assignation sets out the claimant’s case and invites the defendant to appear before the court. The defendant must respond to the assignation within the time limit set by the court. If the defendant does not respond, the court may issue a default judgment.

La Requête

The requête (application) is a simpler method of instituting proceedings. The requête is a written application submitted to the court by the claimant. The requête may be used: when the law provides for it; for urgent matters; for uncontested claims; and for applications in non-contentious matters.

The requête must contain the same information as the assignation. The requête does not need to be served by a huissier; it may be filed directly with the court. The court reviews the requête and, if it is satisfied that the conditions are met, issues an order.

Le Déféré

The déféré is a procedural motion by which a party may challenge an order of the case management judge. The déféré is heard by the court in its composition for hearings. The déféré must be exercised within a short time limit (generally 15 days).

The déféré is an important remedy in French civil procedure. It allows the parties to challenge procedural decisions that may affect the outcome of the case. The déféré is also used to challenge orders relating to the production of evidence, the appointment of experts, and other procedural matters.

L’Action Directe

The action directe (direct action) is a procedural mechanism that allows a person to bring a claim directly against a person with whom they have no contractual relationship. The action directe is available in certain cases defined by law: the victim of a tort may bring a direct action against the insurer of the person who caused the damage; the subcontractor may bring a direct action against the main contractor for payment; and the lessee may bring a direct action against the sublessee.

The action directe is an exception to the principle of the relative effect of contracts (effet relatif des contrats). It is justified by policy considerations, including the protection of weaker parties and the efficiency of dispute resolution.

Urgent Applications

Urgent applications are heard by the juge des référés (summary judge). The summary judge has jurisdiction to make interim orders in urgent cases. The application is made by assignation à bref délai (short-notice summons), which gives the defendant less time to prepare.

The summary judge may order: provisional measures to preserve the rights of the parties; the production of evidence; expert examinations; and provisional payments. The summary judge may also order the restoration of the status quo ante in cases of manifestly unlawful disturbance. The summary judge’s orders are provisional and may be modified or set aside by the court hearing the main case.

Preliminary Questions

The court may encounter preliminary questions (questions préjudicielles) that must be resolved before the main case can be decided. The preliminary question may relate to: the interpretation of a statute or contract; the validity of an administrative act; or the application of EU law.

The court may refer the preliminary question to another court or authority. The French courts may refer questions on the validity of administrative acts to the administrative courts. The French courts may refer questions on the interpretation of EU law to the Court of Justice of the European Union. The preliminary question procedure ensures that related legal questions are decided consistently.

Abuse of Process

The abuse of process (abus du droit d’agir en justice) may give rise to liability for damages. The abuse may consist of: bringing a claim without legitimate interest; bringing a claim with the intention of harming the other party; or bringing a claim that is manifestly unfounded. The court may award damages to the victim of the abuse.

The abuse of process is strictly construed by the French courts. The claimant’s right of access to court is a fundamental right, and the courts are reluctant to find that the right has been abused. The abuse must be clear and serious.