The question of whether the Court of Appeal is obliged to specify in the operative part of its decision whether it is reforming, annulling or confirming the contested judgment, has recently given rise to lively debate. In a recent decision, the Commercial Chamber of the Cour de cassation ruled that article 542 of the Code of Civil Procedure does not create such an obligation, giving rise to misunderstanding and criticism as to the exact role of the appeal judge.
Background and legal framework
The appeal procedure in French law is traditionally governed by a dual logic. On the one hand, Article 542 of the French Code of Civil Procedure stipulates that an appeal is “a criticism of a judgment rendered by a court of first instance, with a view to its reversal or annulment”. On the other hand, modern procedural requirements, reinforced by abundant case law since 2020, require the appellant to expressly request the reversal or annulment of the judgment in the operative part of his pleadings. If they fail to make this formal effort, lawyers may face heavy penalties: confirmation of the contested judgment or, worse still, invalidation of the statement of appeal.
The main aim of this change is to clarify the function of the appeal judge, who is supposed to be the “judge of the judgment” before being the “judge of the dispute”. In the minds of the legislator and case law, the aim is to prevent the appeal proceedings from duplicating a second first instance in every respect, as if the first judgment had never existed. The obligation for lawyers to formally request reversal or annulment is intended to affirm that the court of appeal must begin by ruling on the judgment itself. Only then, if necessary, will it rule on the merits of the case.
Against this backdrop, the Commercial Chamber of the Cour de cassation recently handed down a decision that surprised many practitioners. It states that article 542 of the Code of Civil Procedure, because it limits itself to defining “the object of the appeal”, does not oblige the appeal judge to specify, in the operative part of his decision, whether he is reforming, annulling or confirming the judgment under appeal. For many, this solution seems at odds with the opposite requirement imposed on lawyers to indicate, in their first submissions, their intention to reverse or set aside the first instance judgment.
Reinforced formalities for lawyers
Since 2020, the French Supreme Court has been steadily tightening the formal requirements placed on appellants. The texts relating to appeal proceedings have been interpreted strictly, notably by the Second Civil Chamber, which ruled that the appellant must include a request for reversal or annulment of the judgment in the operative part of his pleadings, on pain of penalty. This jurisprudence was subsequently extended to cross-appeals, and the absence of an express claim on the judgment led the High Court to confirm ex officio or declare the appeal null and void.
Lawyers have therefore adapted, but not without difficulty. The obligation to submit a request for reversal or annulment to the judge has become a necessary step in securing an appeal. It can sometimes make proceedings more cumbersome, as many professionals used to concentrate on the merits of the dispute, assuming that the material submissions alone made it possible to understand which party was contesting the judgment and on what points.
The same reasoning could be applied to the respondent, who admittedly has fewer textual obligations in this area, but who, out of caution, often concludes that the judgment should be confirmed in order to protect himself from any procedural challenge. As a result, appeal proceedings have become a minefield, where the omission of a sacramental formula can lead to radical consequences. This formal requirement was anchored in article 542 of the Code of Civil Procedure, interpreted as the cornerstone requiring not only the existence of a criticism, but also the explicit formulation of a claim on the judgment.
The controversial position of the Cour de cassation
The reversal – or at least the solution recently adopted by the Commercial Chamber – comes as a surprise. In the case that led to the judgment under review, the Court of Appeal had ruled directly on the merits of the claim, without explicitly pronouncing on the fate of the first-instance judgment. The appellant therefore complained of the silence of the court of second instance, which was all the more surprising given that the first judge had already ruled, and that the appellant had asked for the judgment to be overturned. According to the appellant, the appellate court’s decision infringed article 542 of the French Code of Civil Procedure, which logically obliged the appellate court to reform, annul or confirm the original judgment.
In essence, the Commercial Chamber replied that article 542 simply defines the object of the appeal, without however requiring the court of appeal to specify in the operative part the reform, annulment or confirmation of the contested judgment. For some authors, this is a form of procedural “schizophrenia”, for if lawyers are obliged to formulate explicit claims on the judgment, it would seem logical that the judge, in turn, should decide this question. What’s more, there is a real risk of confusion: if the court neither confirms nor reverses, does the first-instance judgment remain applicable alongside the new decision? Doesn’t this create a cumulation of decisions, to the detriment of legal certainty?
A number of grievances have been levelled at this jurisprudence: a denial of coherence, since it imposes on the parties what the judge allows himself to disregard; a denial of justice, since the dispositive principle would have it that everything requested by the parties – in this case, reversal or confirmation – should receive a response, on pain of failure to rule; and a denial of office, insofar as the very function of the appeal judge is to judge the judgment before ruling on the dispute.
Practical consequences and outlook
The first consequence of this ruling is that it makes practice uncertain. In the vast majority of appeal courts, judges usually begin their judgments with a sentence like “The court, ruling publicly, reforms (or confirms) the judgment handed down by the tribunal…”. It was thought that this formulation was not just a polite custom, but a genuine procedural obligation. According to the Commercial Chamber’s new solution, this solemn step, which is supposed to meet the requirement of a referral to the court for reversal or annulment, would not be legally binding. Many fear that such a relaxation would destabilize the very architecture of the appeals procedure, based on a hierarchical structure: appeals are made to have the judgment judged, and only then the dispute.
In practice, it is more than likely that the vast majority of appellate courts will continue to explicitly reform, annul or confirm judgments, if only for the sake of clarity. On the other hand, in the case of a few specific decisions, the Commercial Chamber’s solution could lead some courts to confine themselves to the merits of the dispute, at the risk of creating ambiguous situations. Lawyers, for their part, will continue to be careful with the wording of their pleadings: it would be perilous to rely on any implicit simplification, as previous case law remains strict when it comes to penalizing the absence of an express claim on the judgment.
In the longer term, we may hope for a reversal, or at least a clarification, from the Cour de cassation. The coherence of civil procedure would require that, if the appellant is obliged to request the reversal or annulment of a judgment, the court seized should respond to this request in a formal manner. The overall trend of successive reforms (decrees, circulars, case law) is towards increasing formalization of the appeal as a means of reform rather than simply re-examination of the entire dispute. It therefore seems contradictory to dispense the court of second instance from making any clear statement as to the fate of the contested judgment, even though it should, in absolute terms, ensure legal certainty for litigants and put an end to the conflict.
This ruling by the Commercial Chamber has raised many questions among lawyers and judges, and more generally among all practitioners of civil litigation. Far from being anecdotal, it calls into question the very coherence of the office of the appeal judge. If it is logical to impose a precise formalism on legal professionals when referring a case to the court, would it not be just as coherent to require the latter to rule formally on the confirmation, reversal or annulment of the contested judgment? The question remains open. As it stands, a grey area remains, and there can be little doubt that the Cour de cassation, faced with further appeals, will sooner or later be called upon to clarify once again the scope of article 542 of the Code of Civil Procedure. Until then, the prudent and traditional practice of explicitly ruling on the fate of the judgment will undoubtedly remain the de facto rule in most French appellate jurisdictions.
