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Associate Alice Decramer discusses the reform of the French rules of civil procedure and the pre-trial phase. Watch the full video, below.

This video was featured in the newly launched Legal Diarist, written and published by The Times’ legal correspondent, Edward Fennell, 23 April 2020, here.

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Reform of the French rules of civil procedure and the pre-trial phase

No one could have missed that the end of 2019 was marked by a historic reform of civil procedure rules. In particular, the Decree of 11 December 2019 has had an impact on the pre-trial phase that is specific to civil proceedings.

By way of reminder, the report on the improvement and simplification of civil proceedings, submitted by Frédérique Agostini and Nicolas Molfessis, recommended rationalising the investigation of cases and called for a redefinition of the pre-trial phase.

This redefinition of the pre-trial phase focused on two aspects: encourage pre-trial proceedings based on agreements and rethink the role of the Judge in charge of Procedural Matters.

The Decree followed this recommendation by encouraging pre-trial proceedings based on agreements and extending the powers of the Judge in charge of Procedural Matters to settling inadmissibility pleas.

Which incentives are there to encourage the pre-trial proceedings based on agreement?

Encouraging pre-trial proceedings based on agreement is provided for in new Article 776, paragraph 2, of the French Code of Civil Procedure.

Pursuant to this Article, as early as the preliminary hearing, the Judge in charge of Procedural Matters questions the parties in order to find out if they have, or if they intend to, enter into an Agreement on Participative Proceedings for the Pre-Trial Proceedings (CPPME).

Several incentives are given to the parties. If they wish to enter into the said agreement, they can ask the Judge, during the preliminary hearing, to set a deadline for the end of the pre-trial proceedings as well as a trial hearing, therefore having more control over the procedural deadlines. In any event, all cases where the parties will choose to deal with the pre-trial proceedings by way of an agreement will be scheduled for trial quickly.

Furthermore, pre-trial proceedings based on agreement will interrupt the action and thereby suspend the limitation period, meaning that the parties are free to organise their pre-trial proceedings without fearing the expiry of the said period.

The aim is, in fact, to reverse the parties’ relation to judicial time by making the pre-trial proceedings dependent on the trial hearing and no longer the opposite.

Will the reform have a real impact on pre-trial proceedings based on agreement?

Nevertheless, we have reservations about the real impact of this provision. Indeed, entering into an Agreement on Participative Proceedings for the Pre-Trial Proceedings means each party waives its right to bring a plea of inadmissibility, a procedural plea or a claim based on the provisions of Article 47 of the French Code of Civil Procedure.

By doing so, the parties will have to do a lot of preparatory work and be particularly vigilant from the beginning of the proceedings in order to determine whether or not it will be possible to bring these grounds forth, which may discourage them.

Furthermore, this externalisation of the pre-trial proceedings is based on mechanisms that already exist under French Law, namely participative proceedings and lawyers’ deeds. Yet, when looking at the last few years, one can notice that these mechanisms failed to win unanimous support from legal professionals and were actually very rarely used.

This reform actually recycles pre-existing mechanisms and is likely to be confronted with the same weaknesses as those observed over the last few years.

And what about the extending powers of the judge in charge of procedural matters?

A much more marking innovation of pre-trial proceedings is the extension of the power of Judges in charge of Procedural Matters to settling inadmissibility pleas.

This is even stronger considering that, on the one hand, a mechanism is provided for so that the Judge in charge of Procedural Matters can settle an inadmissibility plea, including when a decision is to be handed down again regarding a question relating to the merits of the case.

On the other hand, the parties cannot raise an inadmissibility plea after the case is removed from the Judge in charge of Procedural Matters’ docket.

And finally, the Orders from the Judge in charge of Procedural Matters settling inadmissibility pleas will have res judicata as an exception.

This is therefore a true mechanism of getting rid of procedural pleas and this mechanism is welcomed by legal professionals since it will, at last, avoid proceedings being extended uselessly when it is obvious they are inadmissible.