Reform of civil procedure – Focus on the main measures to come – 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, for the litigant, synonymous with speed, simplicity and readability with in particular:

– A judge at the refocused office,

– More attractive alternative dispute resolution methods;

– More fundamental rights for people who divorce and protected adults;

– The adaptation of justice to digital technology.

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

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

This so-called "territorial" of the law for the reform of justice has already given rise to the publication of three decrees, published on September 1, 2019, which modify in particular the Code of judicial organization and whose provisions will enter, for the essential, effective January 1, 2020.

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

• The extension of mandatory representation
• The unification of referral methods and the disappearance of the declaration to the registry
• The use of prior MARD before any referral
• The extension of the powers of the pre-trial judge for purposes of inadmissibility
• Provisional legal enforcement of court decisions

The extension of mandatory legal representation

Representation by a lawyer becomes compulsory in principle before the Judicial Court (article 760 of the CPC), without distinction between written and oral proceedings, whereas it was only by exception before the tribunal de grande instance.

Therefore, representation by a lawyer becomes mandatory, in the following specific procedures:

– in 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;

– revision of commercial rents;

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

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

– in matters of expropriation;

– in tax proceedings before civil courts.

In these matters, even if some of them come under the rules of oral proceedings, it will be necessary to appoint a lawyer in the document initiating the proceedings or in defence, failing that, in plaintiff as well as in defence, it will be a case of substantive nullity .

In these matters, however, remain without mandatory representation:

– Deportation;

– Earnings seizures;

– Collective proceedings

– Matters coming under the protection litigation judge

Unification of referral methods (articles 54 to 59 CPC)

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

New mandatory information will also have to be filled in: e-mail address, telephone number of the applicant or his 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 in the summons of amicable attempts when it is not a procedure for which attempts at alternative dispute resolution methods ("ADR ") are mandatory. It should however be recalled that the judge received a general power to order a meeting with a mediator under article 22-1 of the law of February 8, 1995.

The mechanism for taking the date obtained in the long term by digital means

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

Mandatory prior recourse to MARDs

The decree should specify the cases in which the plaintiff must justify, before going to court, an attempt at conciliation, mediation or participatory procedure agreement as well as the notions of neighborhood disputes, 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, on pain 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 pre-trial judge (JME) – pleas of inadmissibility

The pre-trial judge will now be able to rule on all pleas of inadmissibility, by referring to the collegial formation of the pre-trial the pleas of inadmissibility which would require a substantive question to be decided (new article 789 replacing the old article 771 of the CPC).

The possibility offered to opt for a procedure without a hearing

Before the Judicial Court, in cases relating to written procedure (article 778 CPC) as well as those relating to 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 possibility will be open after the parties have been able to present their arguments in writing and have been able to send their documents. The Court may always decide to hold a hearing if it considers that it is not possible to make a decision on the basis of the written evidence or if one of the parties so requests.

The other innovation of the reform law lies in the possibility of settling small disputes, where the amount of interest at stake is less than 5,000 euros, in a fully dematerialized manner, in other words without a hearing and completely online. This possibility will be open, at the latest, on January 1, 2022.

Provisional legal enforcement of court decisions (article 514 CPC)

The appeal and the opposition will no longer be suspensive appeals (article 536-1 CPC).

Provisional legal enforcement 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 leading to manifestly excessive consequences, ex officio or at the request of the parties, by specially reasoned decision.

It will therefore be appropriate to request from the first instance that it be set aside, failing which any request for judgment before the First President of the Court of Appeal seized of an appeal will be inadmissible.

Provisional legal enforcement will remain the exception in the cases provided for by law and in particular for decisions rendered by the family court judge which put an end to the proceedings (divorce, matrimonial regimes, joint ownership, liquidations and sharing of spouses, compensatory allowance, decisions on guardianship of minors), appeal concerning the cancellation and rectification of civil status documents, procedures relating to the first name and modification of the designation of sex in civil status records and in matters of filiation.

The decisions rendered by the commercial court will also benefit from the provisional execution of law, except in matters of preservation of business secrecy for which the provisional execution will remain optional.

These are the probable changes to come concerning the "civil" of this reform and which must still be specified by the implementing decree, the publication of which is scheduled for November 2019.

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