CASE OF LEVAGES PRESTATIONS SERVICES v. FRANCE
No violation of Art. 6-1
John Freeland;N. Valticos;R. Pekkanen
6. The Levages Prestations Services company carries on the business of leasing lifting gear and providing related services. In May 1983 it had recourse to an employment agency for temporary staff, with which it signed five contracts for the provision of manual labour. Subsequently, it refused to pay four of five invoices, initially because it disagreed with the number of hours charged and then on the ground that they were unsigned and did not bear the company stamp. On 18 September 1984 the Paris Commercial Court ordered it to pay the agency the sum of 29,808.01 French francs (FRF) under the contracts. 7. The applicant company lodged a criminal complaint against a person or persons unknown for forgery of commercial instruments, and against the employment agency for aiding and abetting and for making use of forged instruments. 8. It appealed to the Paris Court of Appeal against the Commercial Court’s judgment and made an application for the appeal to be stayed pending the outcome of the criminal proceedings instituted after it had lodged its complaint. 9. On 1 October 1986 the Court of Appeal made an interlocutory order staying the appeal. The relevant part of the judgment read as follows: "... the [Levages Prestations Services] company produced the text of the complaint it had lodged with the senior investigating judge in Paris and evidence of payment on 28 October 1985 of the sum of 3,000 francs, being the amount of the deposit requested on 16 October 1985; ... That complaint concerns not only the identity of the person who signed some of the time sheets but also the number of hours invoiced; Thus it is the actual documents on which [the employment agency] bases its claim that are alleged to be forgeries; Pursuant to the rule that civil proceedings arising from a criminal offence must await the decision of the criminal court, the present proceedings must be stayed." 10. On 24 December 1987 the investigating judge ruled that there was no case to answer in respect of the two criminal complaints. 11. The appeal proceedings resumed in the Paris Court of Appeal, which upheld the Commercial Court’s judgment on 28 September 1989. In its judgment on the merits, following its interlocutory judgment of 1 October 1986, the Court of Appeal referred "for an account of the facts of the case and the claims of the parties to that judgment [of 1 October 1986] and the judgment of the court below ...". It ordered the applicant company, which had continued to argue that the documents were forgeries, to pay FRF 15,000 in damages for having entered an appeal that was designed to gain time and was vexatious to the agency. 12. On 1 December 1989 Levages Prestations Services appealed on points of law to the Court of Cassation against the judgment of 28 September 1989. On 27 April 1990 it filed its pleadings, in which it made no mention of either the criminal proceedings or the Paris Court of Appeal’s interlocutory judgment. It annexed a copy of the Paris Commercial Court’s judgment of 18 September 1984, of its pleadings of 10 March 1986 on appeal and of the Paris Court of Appeal’s judgment of 28 September 1989, against which it was appealing. In the proceedings in the Court of Cassation the applicant company was represented by a member of the Conseil d’Etat and Court of Cassation Bar, as required by law. 13. On 1 December 1992 the Court of Cassation (Commercial Division) held that the appeal was inadmissible in a judgment which read as follows: "Having regard to the first paragraph of Article 979 of the New Code of Civil Procedure; On 1 December 1989 the Levages Prestations Services company appealed on points of law against a judgment delivered on 28 September 1989 by the Paris Court of Appeal which expressly refers to a previous judgment of 1 October 1986 for an account of the facts of the case and the claims of the parties. That judgment of 1 October 1986 thus forms an integral part of the judgment under appeal, but no copy or execution copy of it has been produced. It follows that the appeal on points of law is inadmissible." 14. The New Code of Civil Procedure ("NCCP") contains the following provisions of a general nature: "The parties shall conduct the proceedings in accordance with the responsibilities incumbent on them. They shall carry out the steps in the proceedings in accordance with the prescribed formal requirements and the time-limits." "The court shall ensure the proper conduct of the proceedings; it shall be empowered to lay down time-limits and order necessary measures." "The claims of the parties and the grounds on which they rely shall be set out succinctly in the judgment, which shall be reasoned." The judgment shall set out the decision in the form of operative provisions. "On appeal or if a case is remitted by the Court of Cassation, the registrar shall forward the case file to the relevant court either within fifteen days of being requested so to do or within such other time as may be laid down in special provisions. The registrar shall, if appropriate, make copies of the documents necessary for the proceedings to continue." "The case file of the court of first instance, which the registrar shall request as soon as an appeal to the Court of Appeal is entered, shall be added to the Court of Appeal’s case file." 15. The procedure for appeals to the Court of Cassation, a special form of appeal, is written and relatively straightforward. However, strict time-limits apply. Appeals on points of law, which are brought against a decision and not against a party, are in principle presented by members of the Conseil d’Etat and Court of Cassation Bar. Members of the Conseil d’Etat and Court of Cassation Bar enjoy a monopoly in representing parties in those courts and have a dual role as their representatives and as officers of the court. Thus, for example, they receive full particulars from the Court of Cassation as to the progress being made in the consideration of the case (such as the appointment of a reporting judge, the lodging of his report, the appointment of an advocate-general and the setting down of the appeal for hearing) and it is then their responsibility to forward this information to their client. Unlike members of the ordinary Bar, members of the Conseil d’Etat and Court of Cassation Bar enjoy the status of officiers ministériels (State-appointed officers); their number is irrevocably kept at sixty, pursuant to an ordinance of 10 September 1947. They are appointed by the Government after a reasoned opinion has been submitted by the Council of the Conseil d’Etat and Court of Cassation Bar, the President of the Court of Cassation and the Vice-President of the Conseil d’Etat. Representation by a member of the Conseil d’Etat and Court of Cassation Bar is usually compulsory and any party receiving legal aid is entitled to counsel of his own choosing. However, in certain types of litigation (such as cases concerning parental authority, industrial relations, immigration and political or occupational elections) the parties are exempted by law from having to retain a member of the Conseil d’Etat and Court of Cassation Bar and the procedure is simpler and less formal. 16. The procedure is set out in Articles 974 to 982 NCCP and is the one usually followed in appeals to the Court of Cassation. 17. The notice of appeal, by which the proceedings are commenced, is lodged with and registered by the Court of Cassation registry. It is signed by counsel and contains, in particular, details of the decision appealed against. The registrar forwards it to the respondent "immediately" (Article 977, first paragraph) and must at the same time "request the registry of the court which gave the impugned decision to forward the case file to him" (Article 977, second paragraph). 18. The appellant must lodge his pleading and serve it on the respondent within five months, failing which he will be debarred from proceeding with the appeal. That pleading must contain the points of law on which he relies in his appeal, failing which the appeal will automatically be declared inadmissible without its being necessary for the Court of Cassation to inform the parties beforehand (Court of Cassation, First Civil Division, 28 April 1981, Bulletin civil (Bull. civ.) I, no. 134; 19 May 1981, Bull. civ. I, no. 166). 19. Lastly, the pleading must be accompanied by the decisions and documents referred to in Article 979 NCCP, which provides: "The appellant must file at the registry a copy of the decision appealed against served either on a party or on a lawyer (avoué or avocat) or an execution copy of that decision, together with a copy of any decision upheld or reversed in the decision appealed against, within the time allowed for lodging the pleading, failing which the appeal will automatically be declared inadmissible. The appellant must also annex any documents relied on in support of the appeal." More generally, in accordance with long-established case-law, the appellant must supply any document that it is necessary to read for the purposes of understanding and justifying a ground of appeal put forward, failing which that ground may be declared inadmissible (Court of Cassation judgments of 29 November 1852, Dalloz 1853, 1, 301; 6 December 1871, Dalloz 1872, 1, 192; and 16 December 1891, Dalloz 1892, 1, 67). The production required in the first paragraph of Article 979 if the appeal is not to be automatically declared inadmissible has given rise to a considerable amount of litigation, and the courts have clarified the scope of this formal requirement. 20. As early as 1962 (Court of Cassation, Third Civil Division, 12 February 1962, Barbezat and Others v. Swietek, Bulletin des arrêts de la Cour de cassation no. 93) the Court of Cassation held that the obligation to annex a copy of the decision appealed against "has to be understood as applying not only to the decision appealed against, but also to decisions that are its necessary complement". It added subsequently that the filing of the judgment at first instance required by Article 979 was essential because that judgment formed a single unit with the decision on appeal: "It follows from Articles 954 and 955 of the NCCP that the judgment at first instance forms a single unit with the judgment of the court of appeal as regards both its reasoning and the statement of the parties’ claims and arguments; production of the judgment at first instance is accordingly a formal requirement that is mandatory as a matter of public policy. Any failure to comply with it, which must be raised by the Court of Cassation of its own motion since the Court is under an obligation to verify that appeals to it have been properly made, will result in the appeal on points of law being declared inadmissible. Since the appellant failed to produce a copy of the judgment at first instance as required, the appeal on points of law is inadmissible." (Court of Cassation, Third Civil Division, 19 November 1986, Desmoulins v. Delambre, Bull. civ. no. 161) The Court of Cassation has further held, firstly, that where conflicting decisions have been given, the appellant must produce the impugned decision of the court of appeal and a copy of the decisions which conflict with each other (requêtes, 14 February 1837, Jurisprudence générale Cassation, no. 869); secondly, that in the event of an appeal on points of law against a judgment of a court of appeal dismissing a third-party application to set aside a judgment, the appellant must produce a copy of the judgment which gave rise to the application by the third party (Court of Cassation, Civil Division, 6 April 1987, Bull. civ. II, no. 83); and, thirdly, that in the event of an appeal on points of law against a decision given on appeal from a judgment of a court of first instance upholding part of a judgment in default on an application to set that judgment aside, the appellant must produce, in addition to the court of appeal’s decision, the default judgment and the ruling on the application to set it aside, so as to enable the Court of Cassation to have a complete understanding of the impugned decision (Court of Cassation, Commercial Division, 12 February 1962, Bull. civ. III, no. 93). 21. The issue of inadmissibility was often raised where a copy of the judgment at first instance was included in the case file of the proceedings that was sent by the registry of the court which had delivered the judgment. The Third Civil Division of the Court of Cassation held on this point that it could raise the mandatory objection of inadmissibility without informing the parties beforehand (19 November 1986, Consorts Ceresa, Bull. civ. no. 162). For the legal writers who approved this decision, it was not for the Court of Cassation to warn parties, who were represented by counsel, of the risk that this appeal would be declared inadmissible if they did not produce the documents in time. The Court of Cassation’s only obligation in law is to "inform the parties of any grounds of appeal on points of law which could be raised by the Court of its own motion and invite them to make observations within a time it shall set" (Article 1015 NCCP). 22. Regulated by Articles 983 to 995 NCCP, proceedings in which representation is not compulsory are unusual, although many special exemptions are granted. Formalities are kept to a strict minimum. 23. Notice of appeal may be given merely orally. Notice is given to the court which delivered the decision appealed against, but may also be given in accordance with the procedural rules applying to appeals for which representation is compulsory and be lodged with the Court of Cassation. The registrar registers the appeal and issues a receipt that reproduces the content of those Articles of the NCCP in which the appellant’s obligations are set out. He informs the respondent in a notice containing the text of the Articles relating to the respondent’s obligations. 24. Article 988 NCCP provides: "The registrar shall send the case file to the Court of Cassation’s registry without delay together with: (i) a copy of the notice of appeal; (ii) a copy of the receipt for the notice of appeal; (iii) a copy of the decision appealed against; and (iv) a copy of the judgment at first instance and any pleadings filed at first instance or on appeal. He shall immediately send to the Court of Cassation’s registry any document which he receives subsequently." If the court finds that a document is missing, it stays the proceedings and orders "reconstitution of the case file at the registry of the local court concerned for the purposes of curing the procedural defect" (Court of Cassation, Second Civil Division, 18 January 1957, Bull. civ. II, no. 63). 25. The requirement laid down in Article 979 NCCP for proceedings in which legal representation is compulsory - namely, that a copy of the impugned decision must be produced within the time allowed for lodging the pleading - does not apply to proceedings in which the parties do not have to be represented (Court of Cassation, Social Division, 27 January 1993, Bull. civ. V, no. 27) and an appeal will not be invalidated by a failure to comply with the formal requirements for giving notice of appeal. 26. An appeal on points of law may be declared inadmissible where a failure to carry out a formal requirement prevents the appeal proceeding (for instance, a failure to identify the respondent or the decision being appealed against). The court will of its own motion declare an appeal inadmissible where the appellant has not stated the grounds of his appeal, at least in summary form, in his notice of appeal and fails to state them within three months of lodging it. Filing a pleading is optional in proceedings in which representation is not compulsory. If, as a result of an error not attributable to the appellant, a pleading lodged within the prescribed time was not included in the court file with the result that the appeal was declared inadmissible, that decision must be set aside and the appeal declared admissible (Court of Cassation, Social Division, 25 March 1985, Bull. civ. V, no. 205). In general, the Court of Cassation is less strict in cases in which representation is not compulsory, where the grounds of appeal may be stated in summary form.