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THE ROLE of the COURT of CASSATION the Court Of THE ROLE OF THE COURT OF CASSATION The Court of Cassation is the highest court in the French judiciary. Civil, commercial, social or criminal cases are first of all tried in courts of first instance (tribunaux d’instance1 and tribunaux de grande instance2, commercial courts, employment tribunals [conseils de prud’hommes] ...). Depending on the monetary value of the dispute, decisions from these courts are either deemed to be rendered at last instance if they involve minor claims or, as in the majority of cases, at first instance. Thereafter they may be appealed before a court of appeal which re-examines all the factual and legal aspects of the case. Decisions rendered at last resort by first-level courts and decisions delivered by courts of appeal may themselves be appealed to the Court of Cassation. In addition to its position at the apex of the pyramid, the Court of Cassation is essentially characterised by two distinctive features which set it apart from other courts. First of all, it is unique: “There is one single Court of Cassation for the whole Republic”. Its most important role by far is to uphold this fundamental principle which is laid down at the beginning of texts in the Code of Judicial Organisation that deal with the Court of Cassation: it cannot be dissociated from its foremost purpose which is to harmonize case law and ensure that texts are interpreted in the same way throughout the country. Such a harmonized interpretation is achieved thanks to the unique status of the Court which is consequently able to develop an authoritative case law. A harmonized interpretation and the unique status of this Court are thus mutually dependent. Secondly, it is not a third level of jurisdiction after the lower courts and the courts of appeal as it does not rule on the merits of a case. Indeed, when decisions are referred to the Court of Cassation the Court is required to decide whether the rules of law have been correctly applied by the lower courts based on the facts. This is why the Court of Cassation does not strictly speaking deliver a ruling on the disputes which are at the origin of the decisions but on the decisions themselves. In actual fact it judges the decisions of the lower courts: it is up to the Court to rule whether based on the facts of the case which the courts assessed at their sole discretion and on the questions which were put to them they have accurately applied the law. The purpose of each appeal is consequently to challenge a decision and the Court of Cassation is thus required to find whether the rules of law have been correctly or incorrectly applied. It is at this precise point that the outcome of the dispute is decided. If the decision of the lower court is quashed it is quite naturally set aside and, save in exceptional circumstances where the decision is quashed without the right to appeal from the Court of Cassation’s judgment, the case has consequently to be heard again. 1 1 The Tribunal d'instance is competent in personal or movable civil actions not exceeding €10,000, subject to appeal. 2 The Tribunal de grande instance (TGI) is competent in civil matters valued at over €10,000 as well as all cases (regardless of the amount of money involved) in family law (marriage, divorce, adoption, successions), seizure of immovables, patents, trademarks and dissolutions. The origins of these distinctive features, which confer on the Court of Cassation its singularity and ensure that appeals which are lodged before it form part of “exceptional” review proceedings, can be dated back to the French Revolution. A “Tribunal of Cassation” was indeed established by an Act of November 27, 1790 which by virtue of a senatus consultum (a decree from the Senate) on the Floreal 28, Year 12 became the Court of Cassation. However, the history of the Court can in fact be traced back even further and originated from the way justice was rendered under the Ancien Régime: it was possible at that time to seek judicial review of decisions delivered by the Parlements [Courts of Appeal] before the King’s Council even though justice had been rendered in his name. The fundamental role played by the Revolution was to maintain this institution, despite the fact that it was losing its raison d’être, and transfer the powers that belonged to the Head of State to the courts. Further developments which took place during the 19th century have enabled the Court to establish its widely recognized powers. Moreover, the legal and moral role played by this judicial body has led the legislator to entrust it with a variety of other tasks. One such example is the introduction of advisory proceedings which, under certain conditions, allow the Court to accomplish its vocation to harmonize the interpretation of the law. Here the Court intervenes in advance that is before and not after the lower courts have rendered their decision. In addition, the role of the Court has also been indirectly widened on the one hand by the creation of various judicial bodies which are comprised in full or in part by certain of its members and on the other by the fact that its members are requested to serve on a range of increasingly influential and major organisations which do not necessarily fall within the scope of their judicial powers. THE STRUCTURE OF THE COURT OF CASSATION The structure of the Court of Cassation is naturally based on the fact that its role is to state the law. However, in order to function correctly it also requires an efficient administrative framework. From a judicial point of view, the Court of Cassation is comprised of divisions to which appeals are referred in line with case-review criteria that are laid down by the Court of Cassation Bureau. The number of divisions has gradually increased from the original three (Civil Division, Criminal Division and Chambre des requêtes [a division which ruled on the admissibility of appeals before they were examined by the Civil Division and which was abolished in 1947] to six. A Commercial Division (Chambre commerciale, économique et financière), a Labour Division (Chambre sociale) and a Criminal Division (Chambre criminelle) have been added to the three strictly speaking civil divisions: the First, Second and Third Civil Divisions. Each division has its own presiding judge (président) and the President (premier président) assigns an unequal number of trial judges (conseillers) to each of these according to the number of appeals to be heard. However, due to the increasing caseload, each division has been divided into sections, each one having its own respective bench of judges. A case is heard by three judges if the appeal is inadmissible or if there are no serious grounds to overturn the ruling of the lower court. In such cases or if the outcome of the case “appears to be obvious”, the Court declares that the appeal is “not admitted” (this is called the non-admission procedure). Otherwise, the case is heard by a bench which is comprised of at least five judges, each one having a right to vote. The presiding judge may decide to sit in plenary session (Full Court) if the ruling to be given might overturn previous case law or because the Court is required to rule on a sensitive issue. The Court of Cassation is also comprised of temporary benches which either include judges from each of the divisions (Full Court / plenary sessions) or judges from at least three divisions (Mixed Divisions). These benches are presided over by the President or by the most senior divisional presiding judge of the Court. A total of nineteen judges sit in plenary sessions. These include all the divisional presiding judges and senior trial judges (doyens) together with a trial judge from each of the divisions. The decision to hear a case in Full Court is made by the President or by the division to which the appeal is referred. This is indeed the case when a matter of principle is involved. However it is mandatory if after an initial decision or judgment has been quashed by the Court of Cassation the decision of the second court to which the matter was referred is challenged again on the same grounds or if the request for a plenary session is made by the General Prosecutor (procureur général) before the appeal is heard. It is important to note that the points of law laid down in a ruling by the Full Court which quashes a lower court’s decision are binding on the court to which the case is then referred. 3 In addition to the President or Deputy President, mixed divisions include four judges from each of the divisions (the presiding judge, the senior trial judge and two trial judges). This would represent a total of thirteen judges if a mixed division were comprised of judges from the three divisions. If a given case normally falls within the scope of several divisions or if diverging rulings have been issued or are likely to be issued by the divisions, it must be heard by a mixed division. This is also the case if the division which heard the appeal initially reached a shared vote. Prior to the hearing, the General Prosecutor may also request for a given case to be heard by a mixed division. The foremost purpose of this type of bench is to settle inconsistencies in case law between the divisions. One or several court clerks are assigned to each division.
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