Civil Procedure Reform – Focus on the main upcoming measures – Law of 23 March 2019 on programming 2018-2022 and reform for justice

The simplification of civil procedure is one of the essential axes of the law of March 23, 2019 on programming 2018-2022 and reform for justice .

This reform of civil procedure aims to be synonymous with speed, simplicity, and clarity for litigants, notably through:

– A judge with a refocused office,

– More attractive alternative dispute resolution methods;

– More fundamental rights for people who are divorcing and protected adults;

– Adapting the justice system to digital technology.

It must be read in light of the new judicial organization which will also come into effect on January 1, 2020.

Indeed, the law of March 23, 2019 on programming 2018-2022 and reform for justice also provides for the merger of the district court and the regional court into a judicial court with extended jurisdiction (when the TGI and the TI are located in the same city) and creates the local chambers called "local courts" (when the TI is not located in the same city as the TGI).

This so-called "territorial" of the law for the reform of justice has already resulted in the publication of three decrees, published on September 1, 2019, which notably modify the Code of Judicial Organization and whose provisions will, for the most part, come into force on January 1, 2020.

Pending the publication of the implementing decree concerning the so-called "civil" of the justice law, expected in November 2019, an overview of the likely changes to be expected from January 1, 2020 can already be presented:

• The extension of compulsory representation
• The unification of the methods of referral and the elimination of the declaration to the clerk's office
• Prior recourse to ADR before any legal action is taken
• The extension of the powers of the case management judge to the point of inadmissibility
• The automatic provisional enforcement of court decisions

The extension of mandatory legal representation

Representation by a lawyer becomes mandatory in principle before the Judicial Court (Article 760 of the CPC), without distinction between written and oral procedures, whereas it was only mandatory in exceptional circumstances before the High Court.

Therefore, legal representation becomes mandatory in the following specific procedures:

– summary proceedings when the amount of interest at stake is greater than 10,000 euros;

– before the commercial court when the amount of interest at stake is greater than 10,000 euros, including in summary proceedings;

– review of commercial rents;

– before the enforcement judge when the amount of interest at stake is greater than 10,000 euros;

– in family matters, in divorce proceedings including the orientation hearing and provisional measures, in absence proceedings, review of compensatory payments and delegation and total or partial withdrawal of parental authority or parental abandonment;

– in matters of expropriation;

– in tax proceedings before civil courts.

In these matters, even if some of them fall under the regime of oral procedures, it will be necessary to appoint a lawyer in the initiating document or in defense; otherwise, whether as plaintiff or defendant, it will be a case of substantive nullity .

However, in these matters, the following remain without mandatory representation:

– The expulsion;

– Seizures of earnings;

– Collective procedures

– Matters falling under the jurisdiction of the judge of protection disputes

The unification of the methods of referral (articles 54 to 59 of the Code of Civil Procedure)

The referral to the court is simplified since only two of the five existing methods of referral should be retained: the summons and the application (the declaration to the registry being reserved for the appeal).

New mandatory information must also be provided: email address, telephone number of the applicant or their lawyer, the place, day and time of the hearing, the list of documents on which the application is based.

The new Article 56 of the Code of Civil Procedure should no longer require justification of attempts at amicable resolution in the summons, since such attempts are not mandatory in proceedings where alternative dispute resolution (ADR) methods are not. However, it should be noted that the judge has been granted general power to order a meeting with a mediator under Article 22-1 of the Law of February 8, 1995.

The mechanism for taking a date obtained in the future by digital means

The date will be communicated by the registry by any means (article 751 CPC).

The mandatory prior recourse to ADR

The decree should specify the cases in which the applicant must justify, before bringing the matter before the court, an attempt at conciliation, mediation or participatory procedure agreement as well as the notions of neighborhood conflicts, reasonable time and legitimate reason and set the threshold below which this attempt is mandatory at the sum of 5,000 euros (articles 819 and 819-1 CPC).

The summons must include, under penalty of nullity in these specific cases, the obligation to mention the steps taken to reach an amicable resolution of the dispute.

The extension of the powers of the case management judge – procedural objections

The case management judge will now be able to rule on all objections to admissibility, referring to the case management panel those objections to admissibility which would require a substantive issue to be decided (new article 789 replacing the old article 771 of the CPC).

The option to choose a procedure without a hearing

Before the Judicial Court, in cases falling under written procedure (article 778 CPC) as well as those falling under oral procedure (articles 828 and 829), a procedure without a hearing may take place at the initiative of the parties with their express agreement.

This option will be available after the parties have had the opportunity to present their arguments in writing and submit their supporting documents. The Court may still decide to hold a hearing if it deems it impossible to reach a decision based solely on the written evidence or if one of the parties requests it.

The other innovation of the reform law lies in the possibility of settling small claims, where the amount in dispute is less than €5,000, entirely electronically, meaning without a hearing and completely online. This option will be available no later than January 1, 2022.

The provisional enforcement of court decisions as a matter of right (Article 514 of the Code of Civil Procedure)

Appeals and objections will no longer be suspensive remedies (article 536-1 CPC).

Provisional enforcement by right becomes the principle unless the judge decides to set aside provisional enforcement in whole or in part, if he considers that it is incompatible with the nature of the case or that it risks causing manifestly excessive consequences, either of his own motion or at the request of the parties, by a specially reasoned decision.

It will therefore be necessary to request from the first instance that it be dismissed, failing which any request for a stay before the First President of the Court of Appeal seized of an appeal will be inadmissible.

The provisional enforcement by right will remain the exception in the cases provided for by law and in particular for decisions made by the family court judge which terminate the proceedings (divorce, matrimonial property regimes, joint ownership of civil partnerships, liquidations and divisions of spouses, compensatory allowance, decisions concerning guardianship of minors), appeals concerning the annulment and rectification of civil status acts, procedures relating to first names and the modification of the mention of sex in civil status acts and matters of filiation.

Decisions made by the commercial court will also benefit from provisional enforcement as of right, except in matters of preserving trade secrets for which provisional enforcement will remain optional.

These are the likely changes to come regarding the "civil" of this reform and which still need to be specified by the implementing decree whose publication is scheduled for November 2019.

The contributions of the justice reform law concerning civil enforcement procedures will also be discussed very soon in another post.