Duality and Other Specifities of the French Court System

Question 1

What is an essential principle of our democratic system?

Answer 1

Nul ne peut se faire justice à soi-meme - Nobody should take the law in his own hands
You need someone, a judge or arbitrator to adjuciate the dispute
Access to justice.

Question 2

What are the obstacles to justice concerning the claimant?

Answer 2

When there is a dispute and it it taken to court, it is essential that justice is rendered by someone objective, who is not a party to the litigation
In a litigation, contentieux, the judge has many powers including to interpet the law and apply it

Obstacles which a propective claimant must overcome before accessing justice:
- Legalese (jargon juridique). A big effort was made to get rid of this. The objective is to make court decisions better understood, and that they form case law.
In 2019 Conseil d’Etat and Cour de Cassatoon adopted a more direct way of drafting (rediger) their decisions. Rulings are organised in § that are numbered etc.

The cost of justice
Specificy: Representation of litigants by an avocat is mandatory in a lot of cases: Le ministere d’avocat est obligatoire dans de nombreux cas)
Subscribe legal expenses through insurance, or applying for legal aid.
In France, legal aid is a gift, not a loan like inthe UK. Must meet certain conditions, income under a certain amount
Decree 2021: Guaranteed Legal Aid to protect avocat - state will pay the avocat
Free legal advice, in maison de la justice du droit, for instnace

Question 3

What is the obstacles to justice concerning Accessing court decisions?

Answer 3

Court rulings can be handed down by:
- A panel of an odd number of judges (collégialité avec un nombre impair de juges), a tie-breaking vote (vote decisif, prepondererant)
- A single judge (juge unique)
L.3 Code de justice administrative: principle is collegiate panel of judges, but there is still increase of decisions of one panel judges
To spread out work load and save money. But might not be fair to litigant

Question 4

What is the consequence of a judge rendering a decsision?

Answer 4

Makes it public, subject to a number of limits
Makes it possible to enforce (executer le jugement)
Makes it possible to dispute (contester) its contents if necessary, for instance by Appeal

Question 5

How does the publication of a court decision work?

Answer 5

ECHR Art 6: Court debates have to be public
Important guarantee for the litigants (justiciables)
Case 2019: Constitutional counsil ruled that the legislator can limit this right:
- If it is justified by general public interest (par l’interet general)
-Or by the nature of the case of the specificities of the procedure
But only so long as such limits do not bring disproportionate restrictions to the principle itself

Question 6

Par application de Art 454 Code procedure civil, every civil judgement is rendered in the name of French people and must include?

Answer 6

• The name of the court
• The name of the judges involved
• The date when it is rendered
• The name of the court greffier who puts it in writing
• The names and other relevant details of the parties to the litigation
• If applicable, the names and details of the laywers acting for them

Art L111-13 of code de l’organisation judiciaire: any member of the public can apply for an electronic copy, before available to public the names of parties to the litigation is anonymised, eventually the same of judges

Question 7

Why is it important to have access to court decisions once rendered?

Answer 7

Because court decisions form case law and this is the reason why the law evolves which is in the interest of Justice
Alternative Dispute Resolution is encourage but traditional justice should be protected. They do not have to be published. Cannot always be appealed
ADR is cheeper, quicker, more flesible but should still not become the norm.

Question 8

How does one enforce (executer) a court decision?

Answer 8

Holmes B v. Greece (1997) The enforcement of a court decision is a part of Art 6 ECHR Right to a fair trial

Sometimes the loosing party will willingly (de son plein gré) execute the court decision, by for ex paying damages (dommages et interets) ordered by the court. Other times he wll be reluctant.

Court decision rendered against an ordinary person:
- By seeking from the court that the person against whom a judgement was rendered pays a financial penalty (asteinte) if he fails to execute the court decisiions: it effectively amounts to a fine (amende)
- Seeking forced execution (execution forcée) of a court decision, by aksing for the help of a court enforcement office (commissaire de justice)
- Seeking the help of the police to enforce certains types of decision

Court decision rendered against the state or another public authority:
Art L.11 of admin justice code: court decisions are enforceable. Before an ordinary person had no means for this.
Provisions incorporated into Code de justice administrative - enforced possibility for the administrative court to give public authorities an injunction to execute a court decision rendered against them

Question 9

How does on dispute a court decision?

Answer 9

When someone, qui est partie au litige, believes that the judge who rendered a decision against him made an error, he has a number of remedies available.

• Dissatisfied party goes back to the same court and applies for the court to withdraw its decision, i n whole or in part - Voie de retractation
• Dissatisfied party goes to another, highter court to overturn (infirmer) the lower court decision - Voie de reformation
  OBS! Appeal to Cour de Cassation/Counsil d’Etat is not an ordinary appeal, voie de reformation, but a pourvoi.
  In France we have a “double-degré de jurisdiction” - two stage procedure

Question 10

What are the law professions in France?

Answer 10

• Working within the court systems
• Outside the court systems
• Professional (legally trained) judges and non-legally trained judges
• Other professional poeple like Court clerks (greffier), insolvency practitioners (administrateurs et mandataires judiciaires), adovats, enforcement officier (commissaires de justice)

Question 11

Who are the non-legally trained or temporary judges?

Answer 11

Difference between “juges” (legally trained or not) who adjuciates the disputes and “magistrats” who may include people working for the prosecution service (parquet) who do not adjudicate disputes

Non legally trained judges in France:
- Jurors of the Cour d’assis (criminal court that deals with major offences, jury)
In charge of considering the evidence adduced to decide weather the criminal defendant is guilty in which case he is convicted (déclaré coupable) and should be sentenced (une peune devrait lui être imposée)
- Elected judges of the first instance commercial courts (tribunal de commerce) and employment court (conseil de prud’hommes)
About 25 000 of these.

Temporary judges
- National court for the right to asylum (Cour nationale du droit d’asile)
1 judge from adm, 1 from judicial + from UN + from Conseil d’Etat
- Juvenile court (tribunal pour enfants)
1 legally trained judge + 2 people appointed from French Justice Minister

Question 12

Who are the judges from the Judicial court sytem? (ordre judiciaire)

Answer 12

Legally trained, non temporary
Two main types
- Bench judges (siège) - adjudicate cases and render Justice. Benefit from guareantee that they will not be removed
- Parquet - belong to the panel of judges who hand down judgement

How do you become one?
- National school for judges of the judicial court system (Ecole nationale de la Magistrature)
Former avocats, or university who have M2 and done for at least 3 years
ENM students have a specific status - “Auditeurs de justice” - paid a salaire, take oth (preter serment), have vocal training
- Exam with a limited number of positions open (Concours - means that the number of positions opened is limited)
Not just from university. Student who passed (reussir) a M1, some civil servants and non-legally trained judges
- Other ways. Like being an univeristy professor, or detachment, or become a part-time judges

Question 13

What is the role of the Supreme Judicial council? (Conseil superieur de la magistrature)

Answer 13

All newly qualified judges are nominated by a presidential drecree further to a proposal from the Justice Minister and assigned a job
Surpeme Judicial Council (CSM) is a body that guarantees the independence of hte judicial authority. Primarily responsible for managing the career of judges
Derive from Art 64, 65 of 1958 Constitution

Question 14

What happens when you become a judge of the judicial court system? Privileges and obligations?

Answer 14

They take an oath which is valid for the duration of their career

From a civil point of view, no judge should be sued personally in negligence. If that is the case, French state would act as a filter and be vicariously liable (responsabilité pour autrui), when:
- Personal fault committed by the judge at work but falls out of scope of his professional duties
- Gross negligence commited at work
Judge never pays for dammages directly to a litigant

From a criminal point of view, Art 434-8 Criminal code protects any judge who is subject to threats, violent acts for litigants
However, since 1996 judges have not benefitted from generic immunity from being prosecuted

Obligations, a judge cannot:
- Be nominated in an area where one of his parents is already a judge
- Be elected to a national or European mandate; however
- Exercise any other job
- Express his political opinions (obligation de réserve)
- Get involved in a conflict of interest
- Go on strike (he can belong to a trade union)

Any failure can result in sanctions like w warning, criminal prosecution, revocation, demotion, being forbidden from working as a single judge

Question 15

What is the difference between the Bench and the Prosecution (magistrats du siège & magistats debout)

Answer 15

Bench judges (magistrats du siège) adjudicate disputes, they render a judgment.
Cannot be replaced, do not have to obey anyone’s orders
Have to preserve confidentiality of court deliberations

The prosecutor (parquet) makes sure that public order is respected, that the interests of society are protected etc.
Belong to a hierarchy. Must obay Justice minister. Can be replaced
Does not take party in the deliberating
The prosecution plays a role, not only in criminal law, but also in civil law when it helps to protect society.

Also the disciplinary proceedings are different.

Question 16

What is the prosecution?

Answer 16

In criminal law:
He represents the interest of society
He initiates the criminal action (il exerce l’action publique) - principle de l’opportunité des poursuites
He can exceptionally be bound to procesute where victim seeks financial compensation before the criminal court
Because he is a party to criminal trail, he can lodge an appeal (relever appel)

In civil law:
- The prosecutor an be a party to a civil litigation, either as plaintiff or defenant. He can lodge an appeal (interjeter appel)
- According to the provisions (les dispositions) of Art 424 code procedure civil, he may be required to give his advice on the application of the law to a case to which his attention is brought.

Question 17

Who are the judges from the administrative court system?

Answer 17

1200 members of first instance
+300 for Conseil d’etat

No difference of status between Bench judges (siège) and Public reporters (rapporteurs publics)
Slightly different rules which apply to rule of public reporter: He does not attend deliberations of the first istance, or courts of appeal, only conseil d’etat. However he does not take part in the deliberations

How to become an administrative judge?
- Pass concours by INSCP Institut National du Service
- Be recruited from other administations

Question 18

What are the rights and obligations for administrative judges?

Answer 18

Cannot be nominated in a court where a parent or friend works, nor where their spouse is a politician
- Cannot simultaneously exercise another job, except lecturing at university or publishing books, so long as they remain unbiased and objective etc
They are independent and unlike the judicial system this independence is constitutionally protected

Have to comply with ethical rules “Charte de déontologie de la jurisdiction administrative”

Question 19

What other people work for the courts and participate in the running of the justice system?

Answer 19

• Court experts
  Intervene mostly in the judicial to enlighten the judges on a technical issue which falls outside the scope of the judge’s knowledge
  Not binding, only factual issue
  Optional
  Criminal judges bound by lists of experts, not civil
• Conciliators/mediators/arbitrators
  Alternative Dispute Resolution (ADR)
  First part of the court process or outside the court process
  Arbitration - very common, arbitration is binding on the parties unless agreed otherwise,
  Conciliation - conciliator plays an active part in the conciliation process, he can propose solution
  Mediation - mediator assists the parties with the objective that parties will solve the dispute by themselves. One can be instructed by prosecutor in criminal law if such a measure can ensure compensation, etc
  Reform 2020 in Civil law: If the dispute involves no more than 5000 euros, mediation or conciliation is now mandatory
• Court Clerks
  Plays essential role in every court, both judicial and administrative system
  Number depends on how big and busy court is
  Duties:
  Liasting ations for hearings (audiences) or trials (procès) and preparing dockets of cases, processing documentation of the litigation, contacting experts, laywers, attending hearings and trials, assisting judges in court orders and serving them, ensuring deadlines for appeals are respected

Question 20

What are Insolvency practitioners?

Answer 20

Deal with companies which are insolvent (en cessation de paiement)
Objective to try save company if at all possible, or to limit losses in terms of employment
Will sell company’s assets to pay of debts

Question 21

What are two types of Lawyers who advice, assist or represent litigants?

Answer 21

The avocat-profession. In France there are two types:
- Specialist Counsel
- Avocat

Question 22

What are the Specialist Counsels? (Avocats aux Conseils)

Answer 22

• Specific status of a Specialist Counsel (Avocats aux Conseils)
  With Conseil d’etat, or Cour de Cassation
  Independent autonomous profession separate from the ordinary avocat profession. Have their own professional organisation which protects their interest and ensures their obligations
  About 125 specialist councils

How to become one? Must have studied law M2 and PHD, or law school plus business school or internship in a firm
3 years vocational training IFRAC and take exam

More similar to notaire than ordinary avocat
They cannot set up their own firm, their number is strictly limited.
They can take over from another specialist council, join an existing firm of specialist counsels by buying shares or as an employee

When do litigant instruct such? When an appeal (pourvoi, not appel) islogded, the litigants must be represented by a specialist council

Question 23

What is the general profession of avocat?

Answer 23

How to become one? Requirements to become an avocat
- The student way: M1
2021 Constitutional council considered that M2 instead of M1 not an option. Same for reducing vocational training
Counseil national des barraux is currently working on a potential change
Bar exam to get “certificat d’aptitude a la profession d’avocat” (CAPA). Then take an oath and register with any local bar in France. The bar exam can only be taken 3 times.
- The professional way: Some specific profeesions can apply to be exempted from taking the exams and/or apply directly to join a local par (judges, university law professors)

Very regulated profession.
Recent attempts to deregulate the avocat profession, but failed.
A reform was passed to restore faith in the judicial institutions, changes on ethics and disciplinary actions against avocats

Avocat profession is organised at a local level + is subject to national obligations. Each local belongs to a local bar and is registered onthe ROll
The bar has legal personality, is administaterd by Bar Council (Conseil de l’Ordre). It adopts internal regulations for organisation, legal aid service, commissions,. Has a president with role of arbitration and disciplinary
The scope (champ d’application) of the President is since amended in 2021 so he has a wider role, and possible to change the composition of disciplinary council
There is not fully a national organisation. Weakness. Only Conseil National des barraux

Question 24

What is the role of National Bar Council (Conseil national des barraux)

Answer 24

In charge of harmosing the rules and practises of the legal profession
They introduced National Internal Regulation (reglement interieur national RIN) which standardised interprofessional collaboration, relations between avocats of different bars, ethical rules etc
In charge of organising training for avocats
Determines the terms and conditions by which an avocats specialist field can be officially acknowledged
Deals with applications from foreign lawyers who wish to join the French bar
Regurarly lobbies public authorities: to the profession itself and to citizens in general

Question 25

What are other professions which help the course of justice?

Answer 25

- Court enforcement officiers (officier ministérel chargé) A new profession of Commissaire de justice, has arisen from merger of 2 professions: - hussier de justice in charge of enforcement of court decisions - commisaire priseur judiciaire who organised auctions to raise for debts New institute for this new profession called Institut national de commisaires de justice. Must have M2 and pass exam -The notary profession Subject to strict rules whilst benefitting from monopolies Appointed by Justice Minister, through him government delegates powers to notaires Takes 8 years: M2 in law and various internships and specialist vocational training Has both similarities to Ordinary avocats (like having local level + national organisation) and Specialist counsels (like there being a limited number, rarely setting up own firms, Main fields for notaries: Family law, inheritance law, real estate (immobilier), business legal advice, rural and environemntal law Just like avocats, the 2021 Reform had impact on notaries ethical rules and disciplinary proceedings

Question 26

What are the two court systems in France?

Answer 26

Judicial court system: Ordre judiciare Administrative court system: Ordre administratif 1er degré First instance/trial courts Judicial system: Conseil des prud'hommes, tribunal de commerce, tribunal judiciaire (fusion instance grand instance), cour criminelle (under test), cour d'assises (major offences, with jury) Administrative system: Tribunal administratif 2ieme degré: Appellate courts /Cour d'appel have jurisdiction (competence) when a dissatisfied party lodges an appeal (relever appel) against a decision rendered by (jugement rendue par) first instance court Jurisdiction fâitères: Top/supreme courts Cour de Cassation, Conseil d'Etat Courts that belong to neither - Tribunal de conflits (juridiction départatrice) - Conseil constitutionel Chambres - refers to divisions of acourt

Question 27

Chart of European/International court:

Answer 27

In the judicial court system: - JAP: juge d’application des peines -> amongst other things, he is in charge of determining the way(s) in which a criminal custodial sentence (peine privative de liberté) is executed - JCP: juge des contentieux de la protection -> has jurisdiction (compétence) to deal with disputes relating to private leases and consumer credits JAF: juge aux affaires familiales -> he plays a role in relation to marriage/divorce issues, custody and alimony issues (questions de garde des enfants et de pension alimentaire) etc - T. comm: tribunal de commerce -> first instance commercial court - CJR: Cour de Justice de la République -> has specific jurisdiction to deal with criminal offences allegedly committed by members of the French government in the exercise of their professional duties - TBPR: tribunal paritaire des baux ruraux -> deals with agricultural issues deriving from the use of land, the rent etc - CPH: conseil de prud’hommes -> employment/industrial tribunal In the administrative court system: - CSM: Conseil supérieur de la magistrature - CCSP: commission du contentieux du stationnement payant - CNDA: Cour nationale du droit d’asile At the top: - CJUE: Cour de Justice de l’Union européenne -> Court of Justice of the European Union (CJEU, based in Luxembourg) - CEDH: Cour Européenne des Droits de l’Homme -> European Court of Human Rights (ECHR, based in Strasbourg) - CPI: Cour pénale internationale -> International criminal court (ICC, based in The Hague) - CIJ: Cour internationale de Justice -> International court of Justice (ICJ, based in the Hague) - CPA: cour permanente d’arbitrage -> permanent court of arbitration (PCA, based in The Hague) etc

Question 28

What is a court? (juridiction)

Answer 28

Is an independent institution composed of judges which resolves disputes arising from the application, or non application of legal rules whilst resorting to a range of protective measures aimed at safeguarding the interests of the parties to a dispute Not only advisory opinions. For instance Counseil d'etat do both advisory opinions and deals with litigation

Question 29

How can one separate between courts?

Answer 29

- Those who belong to a the Court systems or not Constituional council, Conflicts court, High court, Court of Justice of the republic do not - First instance and appellate courts Appellate court reconsiders the issues raised in the dispute if one of the parties is in the view that the first instance court erred (a commis un erreur) Case law carries more weight - Courts which consider the merits of the case (le fond du litige) and the others (cassation) First instance courts and courts of appeal can consider all the factual and legal issues before rending a decision Cour de Cassation and Conseil d'Etat will considered whether the former applied the law properly, they only consider legal issues. This is why they do not constitute a third-tier court -Courts which judge a case on the merits (juges du fond) and courts in charge of emergency proceedings (juge des referes) - Courts of general or specific jurisdiction (competence de droit commun ou competence speciale)

Question 30

What is an Emergency proceeding (refere)? And the difference for a court who looks at the merits?

Answer 30

The refere judge deals with applications which are Urgent and/or Aims at stopping illegal activity, or No major serious dispute on the merits Where an application on the marits (demande au fond) has been made before the same court The courts who judge on the merits (sur le fond) usually have a collegiate form, and refere sits alone He looks at the merits of the whole case, refere oes not Force is res judicata (autorité de la chose jugé), whereas the refere is provisional Takes years to hand down a decision, the ordonnance de refere within days or hoiurs Both in adversarial system refere may gant money on account for damages, order construction works stop pending the judgement, appoint a judicial expert Obs! Reform in Judicial court system "procedure acceleree au fond" - will have advantage of refere procedure acting quickly, ad those of an ordinary lawsuit considering the merits of the case and applying substansive law (droit au fond)

Question 31

What is the difference between general and specific jurisdiction?

Answer 31

Specific jurisdiction only deals exclusively with disputes of some court, like employment court Courts of general jurisdiction may know all the disputes not specifically referred to courts of specific jurisdiction Like tribunal judiciaire Quasi-failure

Question 31

What is the difference between general and specific jurisdiction?

Answer 31

Specific jurisdiction only deals exclusively with disputes of some court, like employment court Courts of general jurisdiction may know all the disputes not specifically referred to courts of specific jurisdiction Like tribunal judiciaire Recent statute of 2021 on restoring faith to judicial institutions, major changes: - Allowing hearings to be filmed - Possible to broadast public hearings - Procedure applicable to most seriousoffences (infractions) is reviewed (cour criminelle)

Question 32

What is the High Court and Court of Justice of the Republic?

Answer 32

Just like constitutional council and conflicts court, they do not belong to either court system New High Court (Haute cour) replaced haute cour de justice - Jurisdiction to destitute the French president when he commits a breach of his duties manifestly incompatible with the exercise of his mandate Court of Justice of the Republic (Cour de Justice de la Republique) - Jurisdiction to judge members of the government whose criminal liability is at stake, when the acts were committed at work. Effectiveness is questioned, may disappear

Question 33

What is the constitutional council? How is it organised?

Answer 33

Knows many poliitcal issues (ordre politique) Art 56 of 1958 Constitutuin 2 categories of members: - Full permanent members as automatic right. Former presidents. But no duty to attend meetings - Members who are nominated. 9 appointed for period of 9 years, 3 appointed by French president, 3 by President of Senate,3 by President of National Assembly President is nomined by French president In charge of most important elections, Presidential elections and those relating to two chambers of Parliament Is an advisory institution, it gives advice Art 16 of Constitution, French president has duty to seek its advice The main role: Being a court with jurisdiction to ensure compliance of statutes with the constitution Before 2008 reform they had o check compliance before it came into force (controle par voi d'action)

Question 34

Explain the procedure of referral to the Conseil Constitutionel before implementation of the law?

Answer 34

Referral to the constitutional council to control the compliance of a statute at the pre-implementation stage (avant l'entre en vigeur, controle par voie d'action) Mandatory to refer in two cases: - Organic laws - Rules 24 of procedure of the Houses of Parliament Volontary referal - the norm. But two issues. - If the referral is done by application of Art 61 of Constitution, the must check the compliance with ALL statutory provinces of the Constitution - From 1958 til 74 they could only be initiated by French president, prime minister, president of either chamber, or 60 members of either chambers

Question 35

Explain the procedure of referral post-implementation?

Answer 35

Referral to the constitutional council to control the compliance of a statute at the post-implementation (controle par voie d'exception) Due to Constitutional reform 2008, Art 61-1 of Constitution now provides that there can be a referral to the Council from Conseil d'Etat or Cour de Cassation if it is alleged, in the course of a dispute pending before one of these courts systems, that a statutory provision violates the rights and freedoms protected by the Constitution Introduction of the system of preliminary ruling on constitutionality (question prioritaire de constitutionnalité QPC) Court (even first instance) will check that 3 cumulative donditions are met: - The disputed provision applies to the litigation - The Constitutional council has not yet to consider if this provision complies with Constitution - The issue is genuinely in interst The court considers the merits of the issue raised and may: Dismiss (rejeter) the application for QPC, or refer it to Cour de Cassation or Conseil d'Etat + stays the action. Top courts decide within 3 months if it will be referred, so they act as a filter. Then Counsil will render its decision within 3 months French president + orime minister + heads of either chamber can make submissions Hearing (audience) is public Its ruling is binding (a un effet liant, obligatoire) If statutory provisions (dispositions legislatives) are in breach of the Constitution, they will be repealed (abroger) Play a major role to protect people's rights as guaranteed by the Constitution, both before and after it has come into force

Question 36

What is the Conflicts Court?

Answer 36

Two main roles: - To adjudicate disputes (trancher les conflits de competence) which may arise between two court systems - to prevent possible denials of justice (deni de justice) arising from two court decisions by the two systems which deny having subject matter jurisdiction or contradict each other Separate from judicial Cour de Cassation and Conseil d'Etat Recently reinforced in 2015 Its decisions are binding all French courts from both court systems Composition: Equal representation from two highest courts, 4 from Conseil d'Etat, 4 from Cour de Cassation, 2 diputees (suppleants) per higher court Election every 3 years. Tot 9 years Reform 2015: Replaced Justice minister/garde des sceaux as president with an elected member of either top court. 4 rapporteurs publics - sets out what are the legal issues in the dispute and how they should be adressed Public debates. After the hearings and trial, the judges deliberation is confidential Decisions rendered in the name of the French people. Must set out legal grounds on which they rely (motivation detailée) Should be at least 5 judges In case of even vote, the case will be considered a third time, with more members No appeal possible More roles - Jurisdictional conflicts (even before legal action is brought) - Conflicts between.2 cours decisions already rendered - Specific jurisdiction which applies if a court is in breach of its obligation to render justice within a reasonable time

Question 37

What is the Conflicts court role in Jurisdictional conflicts?

Answer 37

Litigants has to consider - Subject matter jurisdiciton (competence materielle ratione materie) - heart of the dispute. Both in regards to which court system and which court within the system - Territorial and personal jurisdiction (competence territoriale - ratione loci & peronae) - people involved in the dispute Positive conflicts To remove a case from a court of the judicial court system when the state or any other administration alleges that the judicial court system does not have jurisdiction Objective not necessarly to transfer to adm system but to protect administration from interference from jud system - it is a way to guarantee principle of separation of powers By the prefet believes a public law issue raised before a judicial court should have been submitted to the administrative system. He asks the court to decline that they have subject matter jurisdiction and to transfer the case, if they refuse the prefet can take it to the conflicts court Negative conflicts 2 courts (one from each system) both declined having jurisdiction to deal with a case To protect litigants Principle: every person should be able to find a court able and willing to adjudicate the dispute This happened in various steps. Before the court could only know of the problem if the conflict already existed between 2 sets of court (conflit deja ne) Decre 1960 made it possible to refer to court as a preventative measure

Question 38

What is the Conflicts court role on Contradiction between 2 judgments on the merit? (sur le fond)

Answer 38

In exceptional circumstances, 2 courts which respectively belong to one of the 2 orders may hand down judgments on themerits, in relation to the same object in the same case opposing thesame parties whcih contradict each other. This is a denial of justice for litigants 1932 legislator passed law making it possible for a person who suffers damage (subir un prejudice) through the contradictions between 2 court decisions to refer case to conflicts court. Must be made within 2 months

Question 39

Can the conflict court grant financial compensation/damages? (accorder des dommages et intérêts)?

Answer 39

Yes but exceptionally and in specific conditions Par application de a statute passed a statute passed in 2015, Conflict court has exclusive jurisdiction for damages arising from allegations that the time spent in either court system or even conflict court was excessive Propr to lodging such ana ction the party who alleges having suffered a damage must send a demand for compensation to Ministry of justice

Question 40

What are the courts in the first instance judicial court?

Answer 40

The new first instnace judicial court By merger of tribunal d'instance et tribunal de grande instance. To make justice simpler and easier to access but also to save money Civil matters others than those of courts with specific jurisdiction Composed of professional judges + panel with 3 judges (nombre impair) However today, more and more common with unique single judge Has a court clerk (greffier) Courts are usually split in divisions (chambres) There must be at least one first instance court per Court of appeal jurisdiction (in its geographical area) and potentially more (Art L 211-2 Judicial organisation code COJ)

Question 41

What do first instance judicial courts do?

Answer 41

Adjudicate disputes (tranches des litiges) during a public trial Exclusive subject matter jurisdiction (competence exclusive) for certain matters: - Family law - Anything to do with immovables (propriété immobilière) - Inheritance law (roit des successions) It has residual jurisdiction (competence residuelle) for all civil disputes which are not specified to a particular court It can also deal with disputes which usually fall in the scope of commercial courts, when there is no such in a particular area

Question 42

When can the first instance judicial court be held without audience?

Answer 42

The trial itself may be held in chambers (huis clos/chambre de conseil) without an audience in 2 cases: - As of right when judges do not deal with a dispute but a non-contentious application - When judges do deal with a dispute, on an optional basis and when it appears necessary to do se (to protect a weaker party) unless provided otherwise by a text

Question 43

What are the two roles of president of the Judicial court?

Answer 43

Refere procedure - emergency decision rendered by President of any court from Judicial (including criminal) court system and Administrative court system. Does not consider the merits of the case (il ne tranche pas le fond du droit) Deals with applications for an expert to be appointed (la demande de nomination d'un expert) or payment of money on account for damages Application for summary judgement (jugement dans le cadre d'une procedure acceleree au fond) Merits of the case or of a particular aspect of the case will he considered by the judge + emergency not as strongly as refere Also some personal power to adjudicate insolvency procedures affecting farmers Not criminal or administrative court

Question 44

What is the role for the family judge?

Answer 44

His power within the first instance judicial court is strictly limited to dealing with: - Problem of guardianship of minors (tutelle de mineurs) - Divorce - Parental custody (garde des enfants) - Alimony (pension alimentaire) - Change of first name (changement de prénom)

Question 45

What is the role of the Judge in charge of protecting people in general? (Contentieux de la protection)

Answer 45

It can refer to: - Consumer litigation - Guardianship of adults (tutelle / curatelle des majeurs) - Litigation relating to non-commercial leases (baux d’habitation) etc

Question 46

What is the role Judge in charge of enforcing court decisions? (juge de l'execution)

Answer 46

If difficulty enforcing a court order Specific measures to enforce a judgement, like freezing assets

Question 47

What are proximity courts? (tribunal de proximité)

Answer 47

Do not constitute a full judicial court However there are areas which are geographically extensive but not very populated. An existing first instance judicial court will export one of its division to that area to bring justice closer to the people. They will have a court clerk (greffier)

Question 48

Which are the specialised courts of the judicial court system? (a few of them)

Answer 48

Have specific subject matter jurisdiction (competence materiel) For most if not all of them, the president will have the power to deal with emergency applications (assignations en référé) or applications for summary judgment (procédure accélérée sur le fond) - Commercial court (tribunal de commerce) - Judge in charge of expropriation (juge de l'expropriation) - Employment / Industrial tribunals (conseil des prud'hommes)

Question 49

What is the commercial court? (tribunal de commerce)

Answer 49

A consular court (jurisdiction consultaire) Governed by the principe of "Echevinage" - judges come from a mixed background of lawyer and non-lawyers Here mostly non-judges Not paid a salary - work on a volontary basis (benevole) They have to take an oath (prêter serment) similar to legally-trained judges from the judicial court. Statute of 2016: no conflict of interest. Common because judges involved in business A disciplinary commitee was set up with 4 lawyers and 4 non-lawyers Elected for 2 years, renewable for 5 years. Re-election but not for the same court Election: commercants/retailers vote for members of local chambers of commerce and industry and this elects commercial judges Deals with litigation between 2 or more retailers/commercants Jan 2022 extended to artisans Amongst the judges, 2 play a specific role - The president who deals with emergency applications - Juge commissaire - insolvency practitioner in charge of supervising insolvency proceedings Divided into chambers + panel of judges (odd nr, at least 3), trial is open to the public

Question 50

What is the Judge in charge of expropriation? (juge de l'expropriation)

Answer 50

A first instance judge, shared court clerk (greffier) with ordinary first instance judicial court Expropriation very French concept which consists in a public authority legally depossessing people of their property when it is in the general public interest to do so They will also take the decision transferring the title to property from the former owner of the property to the public authority depossessing him Access the amount of financial compensation to be awarded to the depossessed owner if there is a disagreement between the public authority and the owner OBS! Administrative court can be involved in some aspects

Question 51

What is the Employment / Industrial tribunals? (conseil des prud'hommes)

Answer 51

Offer wwo stage process to resolve the dispute - Conciliation / mediation: the aim to reach an agreement and settle the case. mandatory with concilisation stage - If unsuccessful, usual form of court At least one employment court per geographical area where a judicial court is found All activities/professions are covered except civil service (fonction publique) - Dispute between civil servant (functionnaire) and his employer (for ex the state) will be heard in front of administrative courts Composed of advisers (conseillers prud'hommes) and judges - equal representation of employers and employees to protect both parties President and vice president will alternate between those representations Subject matter jurisdiction: Know of any individual dispute related to employment (except civil servants) p urrespective of its amount + which arises between: - An employer and an employee - Between 3 employees in the context of work Personal/territorial jurisdiction: Personal jurisdiction is the one which is in the geographical area where the work itself is done: alternatively where the employee is domiciled if he does not work in a specified or fixed place, the employee can opt for: - The court closest to the place where he was recruited/hired (embaucher) - The place where the employer is settle (employers head office) Procedure Conciliation stage (1 employer 1 employee) Adjudicatory stage (2 employers 2 employees) Emergency applications (1 employer 1 employee) Since 2015 Case management procedure (procedure de mise en etat) which means a judge will check the progess on a regular bais, order specific steps, take a strategic decisions

Question 52

What is the First instance criminal court?

Answer 52

Major changes because Statute Dec 2021 which aimed at restoring faith in judicial institutions (pour la confiance dans l'institution judiciaire) In criminal courts with a general jurisdiction, we have - The prosecutor - The investing judge (juge d'instruction) - The judge in charge of freedom and detention)

Question 53

What is the prosecutor? (Ministère public/Parquet)

Answer 53

Requires from the criminal court the application of the law. This is done in application with the principle of opportunity of the criminal action (principe de l'opportunité des poursuites) He conducts the criminal action in the name of the French society. When a serious offence has been committed and usually after a police investigation had been carried out, the prosecutor can seek the opening of an investigation called "information judiciaire" He executes criminal court decisions which have become final At least one prosecutor in each tribunal judiciaire. Plays a role in tribunal correctionnel, youth court, even civil courts

Question 54

What is the Investigating judge?

Answer 54

Specificity of the French criminal system Appointed by the French president. 3-year mandate is renewable. Chosen amongst the judges from judicial court Must play a role when a crime (most serious offence), like murder and rape has been commited Is in charge of the information judiciaire - which is the opened by the prosecutor. Two main roles: - Looks at the case, considers the evidence annd try to establish what lead to a crime being committed, looks at incriminating and exonerating curcumstances (il instruit a charge et décharge), this may involve seizing evidence (saisir des elements de preuve), going to the scene of a crime, organising a confrontation between the alleged offencer (personne suspectée d'etre l'auteur de l'infraction) and a witness - He is a proper judge and renders a number of court decisions including dismissing a case (ordannance de non-lieu) if there is a lack of evidence against the defendant Objective is to determine weather an offence was committed, if so what type of offence, who were the authors and whether there is any (incriminating or exonerating) evidence against the potential defendant; the fact for the prosecutor to instruct the investigating judge is called a “réquisitoire introductif” which means that the prosecutor requires the investigating judge to gather information about the offence; alternatively and subject to specific conditions being met, the victim – as opposed to the prosecutor - can require (also by way of a “réquisitoire”) the opening of an investigation which will be carried out by the investigating judge

Question 55

What is the Judge in charge of freedom and detention? (juge des libertés et de la détention)

Answer 55

Deal with civil aspects of the detention of foreigners (can lead to complex jurisdictional issues because most litigation relating to migrants go to administrative court) Deal with civil aspects of the detention of people alleged to have psychiatric problems (people who are not compos mentis, les gens en detention qui ne sont pas sains d'esprit Purely criminal aspects of his job - either order renewal of a detention decision or alternatively that someone detained be released from prison: when he exercises criminal duties of that nature, he cannot subsequently know the merits of the case

Question 56

What are the First instance criminal courts when the merits of a criminal court are considered (juridictions pénales de premiere instance devant lesquelles le fond du dossier est examiné)

Answer 56

3 types of courts which corresponds to the 3 types of offences - The first instance criminal courts which deal with the most serious offences (crimes) Cour d'assises, Cour criminelle - The first instance criminal courts which deal with the average offences (Infraction moyenne/delit) (tribunal correctionnel) - First instance criminal courts which deal with minor offences ("petites infractions - contraventions) (tribunal de police)

Question 57

What is Cour d'assises?

Answer 57

Subject matter jurisdiction to deal with the most serious offences (like murder or rape) with such a court in each country (chaque département) With the new cour criminelle, cour d'assises only knows of the most serious offences punishable by more than 20 years in prison Composition: 3 professional judges +. 6 jurors (sometimes 9 jurors when appellate jurisdiction) They deliberate together (unlike common law) You need at least 6 guilty votes to convict someone (or 8 on appeal) If someone is found guilty, application for the damage suffered by the victim is heard by the court only, without jury Non-permanent court which sits 2 weeks per term Possible for proceutor and defendant to appeal

Question 58

What is Cour criminelle?

Answer 58

Experimental court set up by 2019 statute to possibly replace cour d'assis to judge criminal defendats charged with offences leading to a prison sentence between 15 and 20 years (cour d'assises still above 20 years) Composition: 5 professional judges, without a jury Because of the directive: Art 6 everyone has a right to a speedy trial - To process more quickly and effeciently the trial of crimes - Not to incur the costs and hassle of summoning up a jury - To limit the risk of a decrimininalisation of French crimes into lower offences like delits. Proceutor keen on charging people with less serious offences then those acutally commited for a speedier procedure

Question 59

What is the First instance criminal court which deal with average offences (delits)?

Answer 59

Tribunal correctionnel is an emanation of first instance judicial court which means they share the same staff and premises and have similar ways for working A penal of judges, but exceptions to save money (Art 398-1 CPP) Can lead to payment of a fine or a prison sentence up to 10 years Parties - Prosecutor - Criminal defendant - Victim (who may lodge a civil claim for damages/constitution de partie civile) Rare for experts and vitnesses to be heard Criminal process is adverserial (contradictoire): Courts reads the grounds for prosecution President gives parties chance to express themself in plaider un dossier, then deliberate A specific criminal procedure is called Comparution immediate: an immediate appearance in court

Question 60

What is the First instance Criminal courts which deal with minor offences? (contravention)

Answer 60

5 categories of contraventions They like the delits court/tribunal correctionnel share staf with judicial court Automatically a single judge Lead to fine up to 1,500 euros (or 3000 if offence is repeated) Simplified trial, or no trial at all which will lead to a criminal ordinance (ordonnance pénale)

Question 61

Which are the first instance criminal courts with a specialist subject matter jurisdiction?

Answer 61

- Youth / Juvenile courts - Military courts - Maritime courts - Political courts

Question 62

What are Youth / Juvenile courts?

Answer 62

- Juge des enfants: contravention 5ème classe - Tribunal des enfants: same as above, but also deal with very serious crimes (murders) committed by minors up to 16 - Cour d'assises des mineurs: deals with very serious offences (murders) committed by minors between 16 and 18 Criminal justice code for minors came into force Sep 2021 (code de la justice penale des mineurs) Children are deemed irresponsible until the age of 13 Between 13 and 16 they can be held criminally responsible but they automatically benefit from extenuating circumstances due to their young age (excuse obligatoire de minorité) Between 16 and 18 the judge does not have a duty to apply them but he may do it When offence alleged commit by a minor, the prosecutor decides when wheather it is relevant to initiate

Question 63

What are the superior courts of the judicial system?

Answer 63

2 ways to dispute a first instance court decision - Voie de retraction --> Go back to same court and apply to the court to withdraw the decision - Voie de reformation --> Appeal. Go to a higher court 36 judicial appeal courts in France Proper 2nd tier superior courts as they will review both the factual and legal issues raised in the case (as opposed to cour de casssation who will only consider if lower judges erred in law, pourvoi) Double degree de jurisdiction Not all civil casses can go to judicial appeal court Threshold - No appeal under 5000 euros - 4000 if employment tribunal

Question 64

What are the judicial courts of appeal?

Answer 64

General appellate jurisdiction Deadlines: 1 months, 15 days for emergency applications, 10 days for criminal matters (extended if person lives abroad) Based in big cities, covers a few counties (departements) Composed of legally trained judges Divisions: - A civil division (there will often be more than one) - An employment division - A commercial division - A criminal division - An investigative division (which also has criminal jurisdiction) Split e btween: those from parquet (a prosecutor) and those from siege (bench/judges, usually 3) Judicial court of appeal knows of - Civil and criminal eppeals (except for cour d'assises) - Appeals against decisions from first instance courts with general jurisdiction Two or more chambers can work togehther in complex cases which are likely to change case law (chambres réunies)

Question 65

What is the subject matter jurisdiction of the judicial courts of appeal?

Answer 65

Non-administrative dispute All fields such as civil, commercial, employment, criminal law (except cour d'assises which is tried by another cour d'assises) Financial threshold Appeal is a voie de reformation - affirm the lower court decision, or overturn For criminal subject-matter jurisdiction There is a specific investigating division of the Court of Appeal composed of 3 judges. It has - A general role. Hears of appeals against decisions rendered by the investigating judge and the judge in charge of detention and freedom - A specific role: It deals with applications to extradite someone, with the litigation relating to pardon (amnesty) of offences There are, a medium range offences division (chambres des appels correctionnels) composed of 3 judges for delits, and a specific division for minors (chambre speciale des mineurs), composed of 3 judges

Question 66

What is the judicial supreme court?

Answer 66

1 judicial supreme court - it is based in Paris Called Cour de Cassation In charge of breaking lower court decision in breach of law where the lower court judge erred in law Not an appellate court. Does not consider the merits of the case (does not review facts) In france only double degree de jurisdiction Pourvoi Role when it does not act like a court - Drafts a yearly report on its activities handed over to Ministry of justice. On the legal reasoning of its rulings, may invite the legislator for reforms - May give advice to lower court if requested Until 2014 where a court of revision were set up, the supreme court could accept first instance cases 6 divisions (3 civil + 1 commercial + 1 employment + 1 criminal) and a chief prosecutor (procureur general) if criminal Not ordinary avocats (specialised council) (avocats pres la cour de cassation/le conseil d'etat)

Question 67

What are the duties of the judicial supreme court?

Answer 67

Judicial supreme court is the judge of judgements rendered by lower judicial courts which have exhausted their right to appeal It can dissmiss the appeal (rejeter le pourvoi) Or break (casse/annule) the lower court decision - it was not in compliance with law They usually remits the case to another lower court (renvoyer a une juridiction infereure) They can also rule directly It can only rule on the merits of the case (civil only) when the interest of the good administration of justice justifies it They ensure the uniform development of case law (jurisprudence) J21 statute in 2016 on the modernisation of justice in 21th century - it considered submitting potential appeals (pourvoi) to the Supreme court to a filter (filtrage des pourvois) But a governmental commission presided by Mr Nallet (Nallet commission) decided that such a filter would be in violation with the right to access to justice. But in Council of state it is already implemented 2018, and in Uk and US Instead French supreme court introduced a selection process - Short track (circuit court) which makes it possible to deal promptly with appeals when the legal outcome straightforward - Expert track (circuit approfondi) raises a new legal issue - Intermediary track (circuit intermediaire) which knows of cases which neither fall in the scope of short or expert track

Question 68

How has the administrative court system been reformed?

Answer 68

Counsil of state was set up in 1799 after tribunal cassation became the judicial supreme court At first it was not a court, it only was only counselling and and advising the state For a long time it was by itself, then the first instance administrative courts came (tribunaux des conclits)

Question 69

How is the hierarchy of the administrative court system?

Answer 69

Council of state (Conseil d'Etat) Administrative appeal courts (cour administrative d'appel) First instance administratie courts Council of state is not an appellate court

Question 70

How is the Council of state composed?

Answer 70

2 main types of components: - Administrative sections (formations administratives) they give advice to the government - Contentious / litigation sections (formations contentieuses) deal with disputes

Question 71

Which are administrative sections?

Answer 71

Administrative sections: - Specialist administrative sections (sections administrative specialisée) Interior section (section de l'interieur) Public works section (section des travaux publics) Finances section (section des finances) Welfare and social security section (section sociale) Administrative issues section (section de l'administration) They all review staturory instruments (projets de loi) and orders by French governemtn and orders of concil (decrets en conseil d'etat) Mandatory (obligatoire) but not binding (sans entre contraignant) - Permanent / standing commission and general assembly (commission permanente & assemblé generale) Certains bills (propositions de loi) draft decrees of particular importance, like decrets en Conseil d'etat or projets d'ordonnances) - they first go before administrative section,t hen to General assembly Examens draft alws and ordinances when emergency signalated by the Government - Report and studies section (section du rapport et des études) Drafts annual report on activities of Counsil of state, and also helps to oversee enforcement of their judgements, and conducts a number of sections

Question 72

What are the contentious sections (sections contentieuses)

Answer 72

They all deal with litigation. They have - Judges (who deal with adjudicating, render a court decision) including a reporting judge (juge rapporteur) - A public report (rapporteur public) who is seperate from judges The Contentious section (la section du contintieux) with 10 chambers Each chamber has its Investigating section (formations d'instruction

Question 73

Who is the reporting judge?

Answer 73

Exists in courts of administrative system, not only council of state His role is to look into the case, consider the legal grounds (moyens de droit) raised by the parties etc + eventually, report to his peers from the panel of judges who will adjudicate cases at trial Important! The reporting judge is part of the panel which eventually adjudicates the case. Every judge from the adjudicating panel will be reporting on a number of cases. Different from Public reporter (rapporteur public)

Question 74

How does the Council of state consider a case?

Answer 74

A case may be considered: - Solely by the division to which it was allocated (when a case is reasonably straightforward) - By 2, 3 or 3 divisions, including the one to which it was allocated - By the contentious / litigation section - By the litigation assembly (assemblée du contentieux) (this is for the most complex and important cases)

Question 75

What is the subject matter jurisdiction of the administrative court system?

Answer 75

To deal with disputes between a private person and a State, a local authority, a state establishment (etablissement public), or private body entrusted with a public service mission Or between public persons

Question 76

What is the role of Council of state?

Answer 76

Original first and last resport jurisdiction (compétence en premier et dernier ressort) In exceptional cases, they will adjudicate a dispute in first instance as a last resort - Applications against decisions of government - Applications against decisions by commissions or boards with nationwide jurisdiction - Applications concerning regional and EU elections Ordinary appellate jurisdiction Nowadays, an ordinary appeal to Council of state (appel) is very restricted. It deprives litigants of a possible pourvoi stage to check is the law was applied correctly or if they erred Breaking lower court decisions (dans les cadre d'un pourvoi) Similar to main role of judicial supreme court - Administrative courts of appeal - National court of auditors (cour de comptes) - The budget and finance disciplinary court (cour de discipline budgetair et financiere) - Disciplinary tribunals The pourvoi is not a right Filter was introduced in the French Code of administrative justice in 1998. the appellant must meet a number of conditions and in particular demonstrate that he relies on serious grounds (moyen serieux) in his appeal

Question 77

What is the lower administrative courts having general subject matter jurisdiction (competence de droit commun)?

Answer 77

Have panel of judges including reporting judge + public reporter - Administrative courts of appeal Set up to take workload of Council of state Appellate court 9 administrative courts of appeal with various chambres 5 judges President deals with emergency applications - First instance administrative court Replaced the former conseils de prefecture Set up to take workload of Council of state 3 judges Greffier

Question 78

What is the specific role of the public reporter in the administrative court system in the context of litigation?

Answer 78

Plays a part during litigation process before a a court of general subject matter jurisdiction in administrative system Also in conflict courts Separate from panel of judges Considers the legal and factual issues (nearly ever considered by council of state) Drafts a report called Conclusions, and explains objective how the law should be applied by the court. Not binding Can attend the deliberations of Council of state

Question 79

What is the specific administrative court?

Answer 79

Can also be challenged before (contesté devant) the council of state - Financial courts National Court of Auditors (cour de comptes) - ensures that public funds are well spends Has 6 divisions, a president, a parquet Prepares a yearly report for government, checks national social security's accounts Checks the proper execution of the national budget Budget and finance disciplinary court (cour de discipline budgetaire et financiere) Composed of members of Council of state and National Court of Auditors Punishes breaches of rules governing public finances commititted by any person intervening in the management of public affairs

Question 80

What characterises going to court in the Administrative court system?

Answer 80

Derive mostly from jurisprudence (doctrine) Not incorporated in law that much 3 kinds of actions challenging the Legality of an act from the administration: - Litigation aimed at punishing a person causing damage to a property belonging to a public authority (like harbour) - Litigation aimed at interpreting an act of administration - Litigation aimed at holding that an act of the administation is null and void because it is in breach of law Also action aimed at being awarded damages - seek damages for a harm caused by authority

Question 81

What characterises litigation in Civil courts in judicial system?

Answer 81

Distinguishes between - Personal actions (actions personnelles) and actions realting to property (actions reelles) Like breach of contract and protecting a property right like servitude - Actions concerning movables or immovables Immovable is something that does not move like land, building Movable can be moved an can include a debt (creance/dette) or object attached to property - Patrimonial and extra-patrimonial actions Relating to someone's patrimony, like splitting assets, or the person himself like ordering a divorce

Question 82

What characterises Litigation before criminal courts?

Answer 82

Two types of actions: - Criminal action initiated by prosecutor, aimed at deciding if the criminal defendant is guilty of the offence - Civil actions which the victim of a criminal offence can bring before the criminal courts (constitution de partie civile de la victime d'une infraction pénale) Makes it possible to kill two birds with one stone, before one court only However only basis of 1242 CC (neglience)

Question 83

What to think of concerning which court has jurisdiction to deal with a dispute?

Answer 83

Administrative court system or judicial court system? Are they natural persons (personnes physique) or legal persons (personnes morales)? The value of the claim. Less important without instance grande instance Subject matter jurisdiction (competence d'attribution/materielle/ration materae) General or specialist subject matters jurisdiction Territorial jurisdiciton (competence territoriale): Judicial map which divided the territory into various territorial jurisdiction Administrative court has where the public authoruty which took the contested decision etc has its seat Exception realting to planning permission (permis de constuire), public domain (domaine public) or classification of monuments Judicial court, the court which has jurisdiction is normally that of: - domicile of the defendant for natural persons - place where the registered office is established for legal persons Exceptions provided for by statutes, for example when it is in the plaintiff's interest to do so

Question 84

What are the conditions to fulfil to bring a legal action before a court of either court system?

Answer 84

The person who initiates the action must have the right to do so Defendant must be ablet o defend it The aim of court proceeding is to obtain a judgement on the merits after potentially various hearings but only one trial In the case, there can be various hearings (audiences) but there is only one trial (procès) which deals with the merits of the case Written document exchanged between the parties which set out the facts of the case and the legal grounds (moyens de droit) are called pleadings/submissions (actes de procedure) The party who initiatites the court action must "have standing" (interet à agir) - he must have an intrerest in it For prosecutor it is not personal but to defend interest of society Plaintiff must demonstrate his personal interest +he is directly concerned by the action Possibility for group action (less extensive than US class actions) for consumers against retailer in breach of consumer law, for plaintiff who have suffered personal injury through the action of french health service, also environmental and discrimination issues J21 statute introduced group actions to enable victims of breach of personal data to seek compensation Possible to a person to issue the court proceedings on behalf of someone else, like parents for their child on damage, a manager representing a company

Question 85

What are pleadings/submission, claims, other demands and the defence?

Answer 85

Pleadings/submissions (actes de procedure) - written documents the legal action is issued before the trial Reflects the adversarial nature (nature contradictoire) of French litigation Claims/application on the merits (demande au fond) First pleading is called an assignation in judicial system and requete introductive d'instance in administrative system The plaintiff sets out legal grounds (moyens de droit) on which here lies and his claims The plaintiff must have handing (interest a agir), have appropriate quality (act in his own name or explain why he does not), within the relevant limitation period (avant l'expiration du delai de prescription) (action est prescrite) Can apply for a refere or procedure acceree au fond The plaintiff may add to his original claim (demande additionnelle) The defendant may Apply for a refere Can issue a third party actions (un tiers) to potentially shift (bouger, transferer) any form of liability (responsabilité) onto that third party He can lodge a counter-claim (demande reconventionnelle) He can after l'assignation/requete file a defence (conclusion/memoire en defence) He can allege that the court does not have subject matter jurisdiction (exception de procedure), or that the limitation period (delai de prescription) has expired If no counterclaim /demande reconventionelle) is lodged by defendant, the plaintiff may serve a repply (conclusions/memoire en republique) Additional counterclaims is possible, but not endlessly. Judge in charge of management (juge de la mise en etat) will considered the progress and may not allow more May exchange pleadings + documentary evidence (procedure de communication de pieces) the juge de la mise en etat will decide when it is time for trial

Question 86

What are the main procedural principle applicable at trial?

Answer 86

Art 6 of ECHR: Fair and public trial within a reasonable time. Presumption of innocence Applies in France in both court system Adverserial principe (principe du contradictoire) Applies to both court systems Each party to the litigation has the right to be informed of the arguments and documents presented by the other party to the judge Contradiction is a right for litigants and binding on the judge (juge est lié) A procedure can be Adverserial + inquisitorial, or Adverserial + accusatorial

Question 87

What is the difference between an inquisitorial procedure and an accusatorial procedure?

Answer 87

Inquisitorial procedure - the judge himself directs the procedure, as opposed to the parties Applies to the administrative system. The court ensures the citizen's rights are protected against the public authority Very much written. Parties are required to exchange written pleadings Makes the procedure less flexible, but offers a guarantee of reliability and security Accusatorial procedure - public and oral confrontation, each of the parties must prove the facts supporting his case Judge's power is limited. Arbitrating rather than instructing. To ensure a fair trial and decide between the litigants Judicial system has influence of both procedures In criminal law, the procedure is inquisitorial during stage of investigation and accusatorial at the trial In civil law is is accusatorial but there are limits to it, like there being a case management judge (juge de la mise en etat)

Question 88

What is the difference between hearings and trial?

Answer 88

There can be multiple hearings (plusieurs audiences) relating to one case (dossier) but only one trial (un seul procès) Proces - last adversial exchange of the parties before the court, pleading of the case (plaider le dossier) before its deliberations and rendering Many types of hearings, like - Management conferences (audiences de mise en etat) before first instance judicial court - the objective is for judge to check the progress - Specific hearings to deal with applications made by a party to the ligiations, like emergency applications

Question 89

What characterises the trial before administrative courts?

Answer 89

Very much in writing Adverserial The public reporter summarises his claim, and the nontents of the various written exchanges between the parties, and presents his objective opinion of what should be rendered by court After trial, the judgement is reserved (mis en delibere) - judges will take time before they render their decision Rendered in public in a specific hearing Decision must set out legal grounds on which it is basde 2 month appeal deadline

Question 90

What characterises the trial before the judicial court? (not criminal)

Answer 90

Often mandatory to instruct an avocat Number of exceptions in tribunal de commerce, or conseil des prud'hommes Difference to administrative - more common for parties /their lawyers to do plead the case verbally - no public repporter Art 400 CPP: Trials are held in public, if not publicity is dangerous for public order, serenity of the debates, dignitiy of the person or the interest of a third party

Question 91

What is the modernisation of justice?

Answer 91

Towards a generalisation of filmed trials or not? Not the case yet and probably will not be the case Statute Dec 2021 to restore faith in judicial institutions (pour la confiance dans l'institutions judiciaire) - Allowing civil/administrative/criminal/economic hearings/trials (audiences, proces) to be filemd subject to certain conditions being met A pedagogical, informative, cultural or scientific reason of general public interest (authorisation granted by court president after advice from justice minister) - Possible to do a live broadcast of public hearings (audiences publiques) before Cour de Cassation and Council of state (Is already the case of Constitutional council)

Question 92

What is the European influence on France?

Answer 92

Until recently (1950s), France would under the principle of sovereighnty subject to compliance with its Constitution and national laws as it wished In the 1950s, France ratified 2 multilateral treaties - Treaty of Rome (1957) - European Convention of Human Rights (signed in 1950, came into force 1953) They have supra-legislative force - their legal value is above national law Two courts were set up - Court of Justice of the European Union CJEU in Luxembourg - European Court of Human Rights ECHR To go to ECHR, the litigant must have exhausted all national legal remedies (supreme court) To types of application: State can lodge an application on another state's breach of obligation of the ECHR, or individual can lodge an application his signatory state breached a right protected under the convention protects the right to judge, court must be impartial, independent (Art 5 & 6), the right to defend oneself, court must act within a reasonable time (Art 5-3 and 6-1), the right to seek the enforcement of a court decision within reaonsable time Difference between European Union law and Human Rights law - difference set of laws Art 6-2 Maastricht treaty (Treaty on European Union) - the EU must respect fundamental rights EU Lisbon treaty required the EU to accede to the European Convention on Human Rights in not too distant future All 47 Council of Europe states, including 27 EU member states are parties to ECHR, which means the EU will comply

Question 93

What is the principle of separations of powers?

Answer 93

Advocated by Montesquieu L'esperit des lois The three powers were separated after the Revolution. 1791 Constitution referred to judicial power as opposed to court power Then in 1958 Constitution, the judicial power (pouvoir judiciare) was replaced by judicial authority (autorité judiciaire). Then this was extended to administrative court system The word power still applies to executive power and the legislature France has a form of "checks and balances" (verifications and equilibrage), but not as developed as the US The 3 powers an check what the other two do Case BLANKO (1873) Conflict cpourts held that each set of courts has its own jurisdiction and applies it own laws: jurisdictional rules (regle de competence) and substansive law (fond du droit) But things can be more complex in exceptional cases the Council of state can apply private law, and vice versa When a dispute between court systems, 2 ways to solve them - Reference for a preliminary ruling (renvoi prejudiciel) - Conflicts court which deals with conflits de competence between the systems, and disputes arising from contradcitory decisions

Question 94

What are the rules concerning the courts and the legislative vs executive power?

Answer 94

Relationship courts and legislature - The parliament cannot give orders to judges - Judges cannot interfere with the powers conferred on the parliament But indirectly, by interpreting a statute. Or directly, where no appeal is available, the judge can rule "in equity" (rare) Relationship courts and executive Since 1995 the judges from administrative court has been able to give injuctions to the administration (to refrain something) Important to protect judges from interference from executive power French judges (who are civil servants/fonctionnaires) benefit from protection to ensure their independence and impartiality (except from some special judicial tribunals) Art 64 protects independence of the judiciary N 199 DC Constituional council ruled that administrative judges are also independent 2 bodies were set up to protect: - “conseil supérieur de la magistrature” (for the judicial court system) - “conseil supérieur des Tribunaux Administratifs et des Cours Administratives d’Appel” and « commission supérieure du Conseil d’Etat” (for the administrative court system).

Question 95

What are today's crisis for judges?

Answer 95

Identity crisis Judges are under an increased pressure to render decisions as soon as possible with less and less staff (personnel) and money. The law-making process of the judge (processus de “fabrication” de règles juridiques par le juge), through case law / precedents (jurisprudence), is made more and more difficult (at the same time as litigants are more than ever aware of their rights) Financial crisis In order to work well, Justice needs money You can to increase its budget, reform the role of judges to decrease their workload