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published on 4 May 2021 | reading time approx. 8 minutes
With respect to cases involving EU member states, jurisdiction matters in civil and commercial law cases (except in the following subjects: status and capacity of natural persons, maintenance obligations, matrimonial property regimes, wills and succession) are settled in France, like in the whole EU, by two conventions and two regulations, namely the Brussel convention, the Lugano convention, the (EC) Nr.44/2001 (known as the „Brussel I” regulation) and the (EU) Nr.1215/2012 of 12 December 2012 regulation (known as the „Brussel I bis” regulation). The last of these texts, the „Brussel I bis” regulation, has entered into force on 10 January 2015 and is since then to be applied to most of the cases involving at least two EU-member states.
The general principle set out in these texts is that courts of the member state where the defendant is domiciled have jurisdiction provided parties do not have validly agreed on jurisdiction pursuant to national and international public order rules, and a specific jurisdiction rule does not apply (see hereafter).
Special jurisdiction rules apply in various matters pursuant to the above mentioned EU-legislation, e.g.:
in matters of enforcement of decisions: exclusive jurisdiction to the courts of state of the place of enforcement;
in contractual civil liability related matter: jurisdiction is in principle granted to the court of the place of performance of the contractual obligation concerned;
in real estate matters : jurisdiction to the courts of the country where the property is located ;
in consumer contract related matters: jurisdiction to the courts of the country where the consumer is domiciled in cases where the consumer is defendant, whereas in cases where the consumer is plaintiff, the latter is free to choose between the courts of the country where he is domiciled and the courts of the state where the other party has its seat;
in employment contract related matters: jurisdiction to the courts of the country where the employee is domiciled in cases where latter is defendant, whereas in cases where the employee is plaintiff, the latter is free to choose between the courts of the country where he is domiciled and the courts of the state where the employee usually performs his work.
International jurisdiction is governed in France by the rules of domestic law. According to case law, in the absence of specific texts (e.g. international convention), if an element of the dispute makes it possible to link the dispute to a national court, the latter must have jurisdiction over it. As a result, under French law, international jurisdiction is in principle governed by the domestic rules on territorial jurisdiction regardless of the law applicable to the subject-matter and the nationality of the parties. Only subsidiarily French jurisdiction may be based on the French nationality of a litigant.
Under the French rules on territorial jurisdiction, the general rule is that the defendant's residences’ court has jurisdiction so that French courts should have jurisdiction whenever the defendants’ place of residence is located in France.
In addition to this general rule, specific internal rules depending on the matter concerned provide for jurisdiction criteria, e.g.:
In contractual matters the Code of Civil Procedure provide the plaintiff with an option of jurisdiction: in addition to the court of the place where the defendant resides, he may bring an action before the court of the place where the good is actually delivered or where the services are performed. Therefore, French courts may have jurisdiction when the good is delivered or the service is performed on the French territory;
In insurance matters, the French courts have jurisdiction where the insured (plaintiff or defendant) is domiciled in France;
In labour matters, French courts have jurisdiction, either when the establishment in which the work is carried out is located in France, or when the employee, working outside any establishment or at home, is domiciled in France;
In tort liability matters, French courts have jurisdiction when the tortuous event occurred in France or the damage has been suffered in France.
There are two branches of justice in France. A distinction is made between
(1) ordinary jurisdiction, which is responsible for all types of civil and criminal proceedings, and
(2) administrative jurisdiction.
A judgment handed down by a court can, if the amount of the dispute exceeds 5,000 Euro be submitted to the next higher court for review by lodging an appeal (Appel) before the Court of appeal. If an appeal is lodged against a judgment of the first instance, the Court of appeal must re-examine the entire case in the second instance.
The judgement rendered by the Court of appeal can be challenged before the French civil and penal supreme court, named “Cour de cassation” by lodging a cassation appeal (Pourvoi).
The “Cour de cassation” only checks whether all the legal provisions have been applied correctly by the lower instance’ court and does not re-examine the whole case, as lower instance courts have in principle a sovereign power of assessment of the case’s facts and their qualification. If a judgement is annulled by the “Cour de cassation”, the case is in principle transferred to a different court of appeal from the one that decided on the appeal, which will retrial the case.
The French judicial system is structured as follows, with a distinction being made between civil and criminal proceedings in the case of ordinary jurisdiction:
Legal costs are all costs incurred in court and can be divided into dépens and frais irrépétibles.
The dépens include, among other things, the fees of the court itself, the trial fee and the so-called expenses, e.g. for witnesses and experts. Frais irrépétibles primarily include the lawyer's fee and the parties' own expenses.
Lawyer’s fees are freely negotiated and in charge of the parties, unless the latter are eligible fully or partly to legal aid. Are eligible to legal aid people who have limited monthly resources (for an alone living adult monthly resources amounting less than 1,546 Euro).
In principle, the court must decide on bearing of the dépens costs (see above). As a rule, dépens costs are to be borne by the losing party.
In addition, the court may order a party to pay the winning party's frais irrépétibles costs under Article 700 of the French Code of Civil Procedure.
However, in practice the court does not order the reimbursement of the whole actual costs borne by the winning party, it merely orders the payment of a lump sum supposed to reimburse a part of the frais irrépétibles costs. The amount of this lump sum differs in practice from court to court as the judge is free to determine the amount of the expenses to be reimbursed in any case by taking into account the fairness or the economic situation of the sentenced party.
For ordinary proceedings, the Statistics and Studies Department of the French Ministry of Justice have recorded the average duration of proceedings.
These range from 0.2 to 21.3 months in the first instance. Before the “Tribunal d’instance” (district court), it is 4.2 months and varies between 2.6 and 6.8 months. Proceedings before the “Tribunal de Grande Instance” (regional court) last on average 3.2 months and vary between 0.2 and 8.7 months. The average duration of proceedings before the labour courts is 12.9 months and varies between 5.7 and 21.3 months.
In the second instance, the average duration is 11.3 months and varies between 3.9 and 20.1 months.
The duration of the last instance proceedings, which may lead to a further extension of the proceedings, is not taken into account.
In any case, these durations vary depending on the business of the local court concerned and the diligence of the parties involved.
Provisional legal protection is granted under French by courts if certain criteria are met.
The scope of application is first when the execution of an urgent investigation measure or an urgent measure to avoid an infringement of rights is requested.
In addition, Provisional legal protection is opened if there is an undisputed claim or a claim for provisional enforcement of a title. All forms of provisional legal protection have in common that they do not make a final decision.
The party seeking provisional legal protection must file an application with the court and serve it on the opposing party itself. There is an oral hearing in which the decision is taken either directly or shortly afterwards. The decision may be contested by either party and is provisionally enforceable.
French law recognizes both internal and international arbitration.
The regime of internal arbitration is defined by three legislative sources, namely, the Civil Code (article 2059 sq.), the Commercial Code (article L721-3) and the Code of Civil Procedure (article 1442 sq.).
In any case, French law and case law prohibit the conclusion of arbitration agreement in matters relating to public order such as status of persons, employment law, collective proceedings, tax and criminal matters and, in litigations involving public authorities if such authorities are not administrative partnerships or have not been expressly authorized by decree to conclude an arbitration agreement (this is the case for example for public institution in the field of higher education, mines, electricity, gas and train sector).
In addition, arbitration agreement may not lead to the violation of public order regulation.
Arbitration is only valid upon the conclusion of a written and mutually agreed arbitration agreement, which may take two forms, namely, the form of an arbitration clause or a full arbitration contract.
An arbitration clause can be validly stipulated between professional and non-professional parties whereas non-professional parties and professional parties acting outside the field of their professional activity have the option to refuse the enforcement of such arbitration clause.
The arbitration agreement shall determine expressly or by reference to arbitration rules, the arbitrators or at least an appointment method, failing which the arbitration rules provided by the Code of Civil Procedure (article 1451 to 1454) apply.
Provided the arbitration agreement is valid, French courts no longer have jurisdiction to rule on the dispute concerned by such agreement (with exception to provisional legal protection which may be requested by one party provided the arbitral tribunal has not been already seized).
Arbitration rules may be determined by the arbitration agreement, failing which, the arbitration tribunal shall determine those rules.
In any case the arbitration tribunal shall conduct the arbitration in accordance to the general principles for the conduct of proceedings set out in the French Code of Civil Procedure (e.g. principle adversarial proceedings, respect of the object of dispute).
French laws recognizes international arbitration, which is defined by article 1504 of the French Code of Civil Procedure as arbitration that involves the interests of international trade.
French case law recognizes the free arbitrability of international disputes, except for those relating to police laws such as extrapatrimonial rights, tax law, criminal law and partially in matters of industrial property law, competition law and consumer law.
Regulation on international arbitration in French law is included in the French Code of Civil Procedure (article 1504 sq.) which offers a great degree of freedom to the will of the parties. Indeed, the international arbitration agreement is not subject to any formal requirement and most of the provisions on international arbitration shall only apply in the absence of the parties' agreement to the contrary.
In any case, the arbitration rules set by the parties must respect the principle of adversarial proceedings and the equality of the parties.
In the absence of choice of the parties, most of the provisions of the French Code of Civil Procedure on internal arbitration apply.
Article 36 of the Brussels I bis Regulation provides that judgments given in one Member State are to be recognised in the other Member States without any special procedure being required. A review of the decision in the requested Member State does not take place. The Brussels I bis Regulation abolished the recognition procedure (exequatur).
Enforcement measures generally have as their objective the recovery of sums of money, but may also have as their objective the fulfilment of another obligation.
In cross-border civil matters, Article 41 of the Regulation provides that a judgment must be enforced in accordance with the national rules and procedures of the State in which the enforcement measures take place (usually the State in which the debtor and/or his assets are situated).
In practice, a title of execution permitting enforcement (e.g. a court judgment or a settlement) and a certificate pursuant to Article 53 Brussels I bis Regulation must be presented in order to obtain enforcement measures.
The legal proceedings of the enforcement and the executing authorities are appointed by the national law of the State in which enforcement is sought. In France, in principle, the judicial officer is responsible for enforcement. The decision on an appeal against the execution of enforcement is incumbent on the execution judge.
In France, the recognition and declaration of the enforceability of a foreign arbitral award is governed primarily by the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. If the foreign arbitral award has been acknowledged and declared enforceable under Article 3 of the Convention, the levy of execution itself shall be governed by the respective national law. This means, in particular, that there will be no additional oral proceedings before a Member State court. The competent enforcement body in France is in principle the bailiff, appeals must be lodged before the judge.
Litigation & Arbitration
Julia Planty
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