NEWS

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05-02-2018

 

The irregularity of the general appeal with regard to the new requirements for the motivation of the appeal

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Decree No. 2017-891 of May 6, 2017 relating to jurisdictional exceptions and appeals in civil matters modified certain rules of the appeal procedure and entered into force on September 1, 2017.

 

Since that date, article 901 of the Code of Civil Procedure now provides, on pain of nullity, that the statement of appeal must contain "  The heads of the judgment expressly criticized to which the appeal is limited, except if the appeal seeks the annulment of the judgment or if the subject of the dispute is indivisible ”.

 

Except in cases of annulment of the judgment and indivisibility of the dispute, the total and general appeal, without further clarification, is therefore no longer allowed.

 

This rule on the form of the notice of appeal is consistent with the new wording of article 562 of the Code of Civil Procedure which now provides that:

 

“  The appeal defers to the court knowledge of the heads of judgment that it expressly criticizes and those that depend on them. The devolution takes place for the whole only when the call tends to the cancellation of the judgment or if the object of the litigation is indivisible ”.

 

Despite this new requirement, appeal courts have noted that certain notices of appeal made after September 1, 2017 do not specify the heads of judgment criticized and have asked the Court of Cassation for its opinion on the sanction applicable in the event of irregularity of the statement of appeal with regard to the requirements of article 901 of the Code of Civil Procedure.

 

Otherwise, the Courts of Appeal asked the Court of Cassation whether the applicable sanction should be nullity pursuant to article 901 of the Code of Civil Procedure or the end of inadmissibility of the arguments developed on appeal, since the new wording of article 562 of the Code of Civil Procedure seems to imply that the debate before the Court of Appeal is limited to the heads of judgment expressly criticized by the notice of appeal.

 

The second civil chamber of the Court of Cassation responded by opinion of December 20, 2017 that:

 

" The sanction attached to the statement of appeal filed as of September 1, 2017 bearing as subject "total appeal" or "general appeal", without expressly targeting the heads of the judgment criticized when the appeal does not tend to the annulment of the judgment or that the object is not indivisible, is a nullity for defect of form within the meaning of article 114 of the code of civil procedure.

 

This nullity can be covered by a new declaration of appeal.

 

The regularization cannot intervene after the expiry of the time allowed to the appellant to conclude in accordance with articles 910-4, paragraph 1, and 954, paragraph 1, of the code of civil procedure”.

 

The Court of Cassation even specifies in opinion no. 17-70.035 that there is no end of inadmissibility resulting from article 562 (new) of the Code of Civil Procedure.

This solution, which ultimately complies with the circular of August 4, 2017 presenting the provisions of decree no. 2017-891 (Circular of August 4, 2017 presenting the provisions of decree no. 2017-891, sheet no. 7) is a strict application of the aforementioned article 901 which effectively only provides for nullity (and not inadmissibility) as a sanction for irregular formalism.

 

The Court of Cassation also confirms that the irregularity can be covered by a new declaration of appeal, provided that it intervenes within the time allowed to the appellant to regularize his conclusions of appeal. The Court of Cassation takes up here the solution that it recently adopted authorizing the appellant to regularize within the same period the declaration of appeal affected by a material error. (Cass. Civ. 2, November 16, 2017, appeal no. 16-23796)

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Certain vigilance is therefore required of the appellant to avoid incurring the nullity, particularly in the event of a short-term procedure which provides for a specific period of one month from receipt of the notice of determination of the case as soon as possible to submit its conclusions to the registry pursuant to article 905-2 of the Code of Civil Procedure.

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However, the nullity for defect of form is not automatic since it supposes that the plaintiff of the nullity, brings the proof of the grievance which the irregularity causes to him and that he raises the nullity before any defense on the merits or end of inadmissibility.

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It is therefore necessary that the notion of grievance likely to lead to the nullity of the statement of appeal for lack of reasoning be also specified. Indeed, if the Courts of Appeal and the Court of Cassation require proof of harm to the respondent, which is often difficult to report in the case of a formal defect, the contribution of the decree of May 2017 would be only theoretical.

 

 

Roland Rinaldo, lawyer, Cabinet Artlex Nantes

Jean Orieux, trainee lawyer, Cabinet ARTLEX Nantes

 

2nd Civil Chamber of the Court of Cassation, opinion of December 20, 2017, appeals no. 17-70034, 17-70035 and 17-70036, judgment of November 16, 2017, appeal no. appeal, articles 562, 901 and 905-2 of the Code of Civil Procedure, nullity for defect of form.