Duality and Other Specifities of the French Court System Flashcards
What is an essential principle of our democratic system?
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.
What are the obstacles to justice concerning the claimant?
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
What is the obstacles to justice concerning Accessing court decisions?
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
What is the consequence of a judge rendering a decsision?
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
How does the publication of a court decision work?
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
Par application de Art 454 Code procedure civil, every civil judgement is rendered in the name of French people and must include?
- 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
Why is it important to have access to court decisions once rendered?
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.
How does one enforce (executer) a court decision?
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
How does on dispute a court decision?
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
What are the law professions in France?
- 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)
Who are the non-legally trained or temporary judges?
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
Who are the judges from the Judicial court sytem? (ordre judiciaire)
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
What is the role of the Supreme Judicial council? (Conseil superieur de la magistrature)
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
What happens when you become a judge of the judicial court system? Privileges and obligations?
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
What is the difference between the Bench and the Prosecution (magistrats du siège & magistats debout)
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.
What is the prosecution?
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.
Who are the judges from the administrative court system?
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
What are the rights and obligations for administrative judges?
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”
What other people work for the courts and participate in the running of the justice system?
- 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
What are Insolvency practitioners?
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
What are two types of Lawyers who advice, assist or represent litigants?
The avocat-profession. In France there are two types:
- Specialist Counsel
- Avocat
What are the Specialist Counsels? (Avocats aux Conseils)
- 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
What is the general profession of avocat?
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
What is the role of National Bar Council (Conseil national des barraux)
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
What are other professions which help the course of justice?
- 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
What are the two court systems in France?
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
Chart of European/International court:
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
What is a court? (juridiction)
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
How can one separate between courts?
- 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)
What is an Emergency proceeding (refere)? And the difference for a court who looks at the merits?
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)
What is the difference between general and specific jurisdiction?
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
What is the difference between general and specific jurisdiction?
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)
What is the High Court and Court of Justice of the Republic?
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
What is the constitutional council? How is it organised?
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)
Explain the procedure of referral to the Conseil Constitutionel before implementation of the law?
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
Explain the procedure of referral post-implementation?
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
What is the Conflicts Court?
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
What is the Conflicts court role in Jurisdictional conflicts?
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
