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The Cour de cassation

                                                                                                                                  Pierre Drai                                                                       Former Premier Président
de la Cour de cassation
1995

To administer Justice

Since the Revolution, this important function of the State has been entrusted to two divisions of distinctly separate jurisdictions : the ordre judiciaire, at the head of which one finds the Cour de Cassation , and the ordre administratif  with, at its head, the Conseil d’Etat.

The origins of the Conseil d’Etat lie in the powers of the Conseil d’En Haut, the Conseil des Dépêches and the Conseil des Finances,  insofar as these governmental structures permitted certain appeals against the decisions of the King’s representatives.

During the Revolution, the Conseil d’Etat, composed of the King and his ministers, was to receive some jurisdictional powers; unlike judicial jurisdictions, it gave rulings on petitions to annul irregular acts.

But it was Bonaparte  who determined the creation of the Conseil d’Etat by endowing it with powers close to those which it now possesses.

Nowadays, the Conseil d’Etat, the highest administrative jurisdiction, has a role in contentious matters and participates in legislative and statutory work in examining bills, statutes and decrees whose submission may be mandatory or optional.

 The Cour de Cassation, which consists of a single court, and whose jurisdiction extends over the whole of the national territory, has as its essential purpose to control the application of rules of law in every judicial jurisdiction by quashing the irregular decisions which are referred to it. Moreover, it ensures the unity of caselaw (jurisprudence).

The highest court of the ordre judiciaire is linked with the history of France; this is demonstrated by its architecture, the different stages of its development, right up to the present day.

The Cour de Cassation finds its origins in the Conseil des Parties within which the King exercised the “justice retenue” and in this capacity could hear the actions judged by the Parliaments with the power to quash their decisions.

It emanates directly from the  Tribunal de Cassation, created by decree of 27 November- 1 November 1790, attached to the Corps législatif and tasked with “annulling all instances in which procedures have been violated and all judgements which are patently non conform to the text of the law”.

The Tribunal was strictly controlled by the Corps législatif which could annul its judgements; it intervened only in cases of manifest violation of the law.  Nevertheless the basis of the principles governing the appeal to the Supreme Court, and, in particular, the distinction between fact and law, were already to be found there.

The Tribunal de Cassation became in 1804, the Cour de Cassation.

It is traditional to speak, in the context of administrative jurisdictions, of a system of case law. This observation is also holds true for the Cour de Cassation, whose doctrine has developed practically without legislative intervention, for nearly two centuries.

The development of the jurisdiction of the Cour de Cassation is marked by decisions which defined little by little its scope even if, particularly since the Second World War, various texts have modified the organisation of the Cour de Cassation, it is only with the new Code of Civil Procedure and the Code of Judicial Organisation that the rules  governing appeals to the Cour de Cassation  have been the subject of systematic regulation, giving legislative form to the structure already established by case law.

If, today, the Cour de Cassation fulfils its traditional role at the Head of the French ordre judiciaire (I), its development points to it becoming being a true Supreme Court (II).

 I - The Cour de Cassation, Supreme Jurisdiction of the French Judicial System

 The French judicial system is based on the principle of two tier jurisdiction.

Disputes are considered first of all by the courts of first instance.  Thereafter, if the parties are not satisfied, there are the courts of appeal, jurisdictions of second instance, which "have ultimate authority to decide the merits of a case".

The Cour de Cassation does not represent a court of third instance.  Its mission is to judge, not disputes, but judgements, because "the appeal to the Cour de Cassation has at its aim the censure of the judgement it attacks as failing to conform with the rules of law" (Article 604 of the new Code of Civil Procedure).

This mission corresponds with the need to ensure the unity of both the interpretation and the application of the law.

It follows that it can only be entrusted to a single jurisdiction or court, whose decisions are binding on the judges of the merits of a case.

This is set out in Article L 111-1 of the Code de l'Organisation Judicaire: "there is, for the whole of the French Republic, one Cour de Cassation".

Are the decisions of the Cour de Cassation a source of law?

If one gives that concept a normative value, a negative answer will result, because "judges are forbidden to give their opinions in the form of generalised and prescriptive assessments of the causes of action submitted to them" (Article 5 of the Civil Code) and because "the authority of the judgement extends only to the object of that judgement" (Article 1351 of the Civil Code).

But that does not mean that the judgements of the Cour de Cassation do not have some of the characteristics of statute law.

On the contrary, as Jean Carbonnier, Dean [of Paris Bar?] pertinently remarked:  "when speaking of the law of a country, it is necessary to include not only its enacted laws, but both its enacted laws and its case law".

This finds its highest expression, in France, in what is termed the "doctrine" of the Cour de Cassation.

This doctrine is elaborated through a process which revolves round principles which I shall describe by reference to the organisation (A) and the functioning (B) of the Cour de Cassation.

 A.        The Organisation of the Cour de Cassation

There are two types of magistrat within the Cour de Cassation called magistrats du siège and magistrats du parquet.

 The First President (Premier Président) in the Cour de Cassation is at the head of the magistrats du siège and has both jurisdictional and administrative powers.

In addition, he presides over the Conseil Supérieur de la Magistrature when it acts as disciplinary council for magistrats du siège (Conseil de Discipline) ; he also presides over the Commission for the Promotion of Magistrats (Commission d’Avancement des magistrats) and the governing body of the Ecole Nationale de la Magistrature.

 The Procureur Général in the Cour de Cassation is at the head of the magistrats du parquet and also has jurisdictional and administrative powers.

 Each of the heads of the Cour de Cassation is assisted by an office (Secrétariat Général) made up of three magistrats.

 The Cour de Cassation is divided into 6 sections called chambres :

- one criminal chamber, for criminal matters,
          - five civil chambers:
    .           the first civil chamber, competent mainly when dealing with the law of persons and family law, international private law, the law of obligations and of contract, and the law of literary and artistic property  ...
    .           the second civil chamber, competent in matters of divorce, delictual responsibility, civil procedure and the judicial attachment of assets ...
    .           the third civil chamber, competent in matters of real property, leases, coproperty, expropriation...
    .           the commercial, economic and financial chamber, competent in matters of collective associations, commercial companies and firms, and bills of exchange ...
    .           the “social” chamber,  competent in matters of  labour and social security law.

 These chambers can meet in two different ways:
    .           they meet in formation ordinaire, when all the members in the section are present,
    .           they meet in formation restreinte when only five members are present. This formation restreinte may consist of only three magistrats “when the rapid solution of the appeal seems to be vital”.

Apart from these six chambers, there are also two senior divisions presided over by the Premier Président
    -           the Chambre Mixte made up of the presiding judges in every chamber, of the senior judges and two judges from at least three of the chambers of the Cour. This division meets to decide either a question which would usually fall within the remit of several chambers or a question which might have or already has had differing solutions before the individual chambers,
    -           the Assemblée Plénière (general assembly) is made up of the presiding and senior judges from the six chambers as well as of two judges from each chamber. Its task is to assert the precedence of the doctrine of the Cour de Cassation ; this senior formation usually addresses questions of principle : thus, over the last few years it has been called upon to study the difficult problems of surrogate motherhood and transsexualism.

 The Cour de Cassation is thus made up of 6 presiding judges of the chambers, 85 judges (Conseillers), 41 Conseillers référendaires (who are assistant judges appointed for a non renewable term of up to 10 years) one premier avocat général and 19 avocats généraux.

The presiding judges, the Conseillers, the premier avocat général and the avocats généraux are all magistrats at the top of the judicial hierarchy.

The conseillers référendaires are of a more junior status who have already worked for at least seven years in the lower courts.

 In addition, the Court has a documentation and research service, directed by a Conseiller and consisting of 18 magistrats named auditeurs.

All this involves around 200 magistrats.

A Head Clerk (Greffier en chef) directs the office of the clerk of the court where 230 civil servants work.

 B.        The functioning of the Cour de Cassation

 The way in which decisions are reached in the Cour de Cassation is as follows :

An appeal to the Court is lodged either with the clerk of the Cour de Cassation itself or with the clerk of the court whose decision is to be appealed.

With the exception of a few areas of law ( principally in matters of labour law) an avocat must be instructed to appear before the Court.

There is, in fact, a specialist section of the profession known as the Ordre des Avocats au Conseil d’Etat et à la Cour de Cassation.

These Avocats aux Conseils whose number has been fixed at 60 but who are allowed to form partnerships are officials who play an essential role in the working of the Court given that the “technique de cassation”  follows special rules.

The appellant has a time limit in which to lodge a fully argued brief setting out the reasons why it is sought to quash the decree which is subject to challenge.

This time limit will either be five or three months depending on the subject-matter of the appeal.

The time-limit accorded to the respondent, in which to lodge his response, is either of two or three months.

The Premier Président may reduce these time limits where the case raises a question of principle or where there is urgency.

Once these briefs have been lodged, the case is passed to the documentation and research department (Service de Documentation et d’Etudes).

The magistrats within this department known as Auditeurs have a dual role :
    -           firstly, having regard to the question raised by the appeal, they assign the case to the competent chamber of the Court;
    -           secondly, they open a file containing both case-law and doctrine relevant to the appeal, thus facilitating a decision on the case.

The appeal is then distributed to the appropriate chamber of the Court : the presiding judge assigns the case to a Conseiller or to a Conseiller référendaire who becomes known as the conseiller rapporteur.

The conseiller rapporteur responsible for the case will then draw up three documents:
    -           the report itself which is a statement of procedure,
    -           a note outlining his opinion of the merits of the appeal,
    -           a draft decision rejecting the appeal or a draft decision allowing the appeal or both, where there is uncertainty.

The case is then given to an avocat général who will either lodge a written opinion or give an oral statement at the hearing.

The avocat général is a commissaire de la loi whose role is to give an independent opinion on the decision which the court should adopt.

Unlike the members of the ministère public of the lower courts, the magistrats of the Parquet Général de la Cour de Cassation are not subject to the control of the Garde des Sceaux. In terms of Article R.132-1 of the Code of judicial organisation, “the functions of the ministère public are entrusted personally to the Procureur Général”  of the Cour de Cassation. Article R.213-21 of that code, on the other hand, states that “the functions of the ministère public are specially entrusted to the procureur général of the Court of Appeal.

Fifteen days before the hearing, a  conference is held, made up of the presiding judge of the chamber and the senior judge of the chamber and the avocat général. The main purpose of this meeting is to ensure that the case is ready to be heard.

The hearing then takes place, as follows, and always remembering that in general the avocats having already lodged written reports, will not plead :

The reporting judge (conseiller rapporteur) presents his report and the avocat général gives his submissions (conclusions), whereupon the chamber deliberates on the case.

Unlike the lower courts the senior judge will speak first.

The conseillers référendaires are entitled to speak and vote upon the cases that they have been assigned;  otherwise they have a right only to be consulted. The decision is by majority of votes.

Whether the appeal has been brought before the Chambre Mixte or the Assemblée Plénière or before one of the chambers of the Cour de Cassation, the merits of the case will never be re-examined.

The Court must only concern itself with censuring the non-conformity of the challenged decision to legal rules. That non-conformity may derive, for example, from a violation of the law or a lack of proper reasoning or a failure to observe proper procedures.

Where the arguments advanced against the challenged decision are not well founded, the appeal is rejected and the appellant may not challenge the same decision again.

The alternative is that the decision is quashed.  The judgement quashing any decree will be limited to the grounds of appeal, which may have been total or partial.

To this extent, the judgement takes parties back to the point before which the decree which is being challenged had been pronounced. Where there is to be no fresh ruling on the merits of the case, judgement is given without any subsequent referral. Otherwise, the case is referred back to another court in a different jurisdiction but of the same level as the court whose decision has been quashed.

The case will be heard again both on questions of fact and of law by the court to which it has been referred (but excluding any points not the subject of the appeal to the Cour de Cassation).

If the decree pronounced by this second court is challenged on identical grounds the case must be referred to the Assemblée Plénière of the Cour de Cassation.

If the Assemblée Plénière in turn quashes the decree the court to which the case is further remitted must conform to the decision of the Assemblée on the points in respect of which it has given its decision.

The Cour de Cassation is thus assured of its ability to impose its decisions and can thus fulfil its role in safeguarding the uniformity of caselaw.

But, if the Cour de Cassation fulfils its role of safeguarding the uniform application of the law, is not its true vocation to become a truly supreme Court ?

II - The Cour de Cassation, Supreme Court of the French Judicial System

The modern equivalent of the Grand Conseil, and evolving directly from Tribunal de Cassation, the Cour de Cassation, consisting of a single court, and placed at the head of the judicial organisation, has, as we have seen, only one essential mission, that of watching over the proper application of the law by judges and of ensuring the unity of its interpretation.

It represents a mission of juridical policing, aimed towards the good order of our social existence and the harmonious functioning of our institutions.

Seen as an ideal, this mission would allow those judges tasked with deciding the merits of the case the job of understanding its facts and inserting those facts into the mould of judicial syllogism.  However, the Cour de Cassation has not escaped the universal phenomena of flux, overloading and blockage.

The picture of a judge in the Cour de Cassation, towards the beginning of this Century, having his share of four or five files distributed to him each month, has been revolutionised.

And yet, the Cour de Cassation, which receives approximately 26,000 new appeals each year, would not be capable of responding to this highly inflationary behaviour by establishing a "production line" of the same form and following the same trends.

This would be inadequate, however hard the efforts and however great the devotion of those who, in its heart and day after day, struggled against an evil representing simultaneously the forces of explosion and implosion.

Moreover, the solution cannot be produced by a substantial increase in the number of judges.  That is an easy route, but a dangerous one:  it leads to unacceptable divergence of jurisprudence and, through that, to the negation of the mission of the court.

Indeed, "the hasty examination of thousands of affairs is not compatible, for a Supreme Court, with the proper exercise of its mission" (André TUNC) and it would be disastrous for this same supreme court to be tempted to "judge in the rhythm of petty crime" (Pierre ARPAILLANGE).

Solutions have therefore been created that are drawn from the practice of a policy of self help and openness to external circumstances.

Their aim is to emphasise the selective role of the court (A) and to provide it with a consultative role (B).

A.        The selective role of the Cour de Cassation

The selective role is illustrated by the institution of Article 1009-1 of the new Code of Civil Procedure and by the plan to create a division for acceptance of appeals to the Cour de Cassation.

a) Article 1009-1 of the new Code of Civil Procedure

The appeal to the Cour de Cassation is an exceptional means of appeal being allowed only in cases specified by law and, only exceptionally has the effect of suspending execution of the judgement appealed against.

This means that in the large part of civil cases, the decision subject to appeal (a decision or a decree given without right of appeal on the facts by a court of first instance or a ruling pronounced by an appeal court) is enforceable, notwithstanding the existence of the appeal.

In practice, however, one notices that parties appeal to the Cour de Cassation while leaving the attacked decision unimplemented thus using the Cour de Cassation as a third degree of jurisdiction, whereas the high jurisdiction has the sole task of judging compliance with the rule of law of decisions which are referred to it.

Article 1009-1, created by a décret of 20 July 1989, permits the defender to the appeal to request from the Premier Président of the Cour de Cassation the withdrawal of the appeal from the Roll of the Court when the enforcement of the judgement, to which he is entitled, was not afforded to him.

If this arrangement seems “an absolute weapon against dilatory appeals” (Philippe BERTIN) it constitutes, above all, “a measure of appropriate legal morality to reinforce the authority of the judges on the merits” (Pierre DRAI).

A “let out” has been organised, in cases where the execution of the decision subject to appeal would lead to “manifestly excessive consequences”, that is to say irreversible, and thus allows the safeguarding of interests worthy of consideration.

Naturally, if, once the withdrawal from the Roll has been pronounced, the pursuer in the appeal executes (completely) the decision attacked, the Premier Président of the Cour de Cassation will authorise re-enrolment on the Roll of the Court.

Henceforth, anyone taking his case to the Cour de Cassation must take into account this provision which has its origins in the new Code of French Civil procedure and bow to the decisions of the judges of the merits, so that the doors of the Supreme Court will be open to him.

This measure gives excellent results and, each year, there are more than 500 appeals which disappear from the Roll of the Cour de Cassation.

b)  The Formation of a group to consider the admission of appeals

One of the drawbacks of the Cour de Cassation is that of the lack of differentiation in the treatment of cases and disputes: the serious and the futile, the clear and the complex, the problem of society and the unacceptable quarrel about a “nonsense” in procedure, all is scrutinised, picked over thoroughly, studied according to the same process, observing the same time limits and imposing the same forms.

But, we know that more than half the appeals are destined to be blocked, whether because they seek to raise elements of pure fact, or because they make the judgement attacked say what it did not say.

It is therefore necessary and urgent to operate a selective sorting out process between appeals based on serious grounds and those which have been made only to gain time, to exhaust the other side or to prolong a maddening uncertainty founded in despair.

Nearly all Supreme Courts have adopted a mechanism, more or less elaborate, and more or less restrictive, for filtering cases.

It is thus that the Cour de Cassation has considered establishing a group in each section charged with selecting cases to be heard.

In this respect, an initiative was taken by the first Civil section and by its president, in January 1991.

Since that date, a group involving three experienced magistrates has examined all the appeals allocated to the section, once the briefs have been lodged.

This group rejects those appeals which are inadmissible or which are not well founded.  In this case, it gives a judgement consisting of an abbreviated statement of reasons.

In other cases, it sends the appeals in the normal way to the section, sitting in formation ordinaire or in formation restreinte.

Thus the first type of case is treated with the contemptuous arrogance of a Sovereign judge, without wasting time, effort or competence; the second type of case, on the other hand, commands the undivided attention of the judges and time does not come into their examination.

This original experiment had to be sanctioned by a text: in October 1994, a draft law setting up a group for admission of appeals before each civil chamber was adopted by the Senate. The National Assembly, however, showed itself to be hostile to this text and the Garde des Sceaux had to withdraw it.

The problem, however, is still there: it is vital to take forward these considerations and to find a solution able to contain the asphyxia which is choking the Cour de Cassation.

Indeed, the whole future of the supreme jurisdiction is at stake.

Now let us examine the consultative role of the court.

B.  The Consultative Role of the Court

Two recent texts illustrate this consultative role.

a) Submission for an opinion or the Cour de Cassation as consultant

In allowing the courts to seek the opinion of the Cour de Cassation when they have before them a question raising “a matter of new law, presenting a genuine difficulty and arising in numerous cases”, Articles L151-1 to L151-3 of the Code de l’organisation judiciaire, instituted by a law of 15 May 1991, have revived the statutory referee established some two hundred years earlier by the laws of 16-24 August 1790.

The seeking of an opinion from the Cour de Cassation is one of the responses to the growing paralysis of the judiciary faced with the “mounting and increasing flood” of caseloads.

In conferring on a particular group of the Supreme Court (the Premier Président, the six Présidents de chambre and two judges nominated by each chamber specially concerned with the question put, the law pursues a double objective: that of ensuring the uniformity of case law and the prevention of litigation and that of increasing the effectiveness of new legislative texts and regulations, involving in them in some way, the judge, supreme in the legislative function.

Until now, the Cour de Cassation adopting a flexible and rapid procedure, has given about 60 opinions.

The practice of submitting for an opinion constitutes, without doubt, a solution for the future which will change the nature of the Cour de Cassation and the development of case law.

b)   Judges in special service or the Cour de Cassation as adviser

Without endangering its credibility and thus its legitimacy, and without putting in doubt the utility of its actions, the Cour de Cassation must not isolate itself from the outside world.

Present in  the world, attentive to its evolution it can only ensure, at best, its role as regulator and its disciplinary role to the extent that, informed of the needs and aspirations of contemporary man, it takes the trouble to give an appropriate response when asked to justify itself, that is to say, clear, user-friendly and capable of positive efficacy.

A propensity for the delights of pure law must never allow one to forget that, once the judge’s work leaves his office it is immediately subjected to the tossing around of a world that is perpetually turbulent and strongly influenced by the media.  Opening up to this world involves attention to the demands of the lower courts, whose decisions are subject to the censure of the Court.

If the judge must be in the city, after being taken out of the Neolithic age, following the formula of Premier Président AYDALOT, the world of the university, that of business, that of social and working life and the world of science cannot escape his scrutiny and his questions, and these territories cannot remain unknown territories on which he takes only meanly counted and measured steps.

To enrich the debates which take place before it and to bring them to the high level which they need to have, by reason of their technical merits or their specificity, the Cour de Cassation has a duty to open its doors to the outside world, where the skills sought are incontestable, impressive and of a high moral and human value.

Because it is a supreme and sovereign jurisdiction, the Cour de Cassation cannot allow itself to be deprived of assistance of those who, in our country, are the embodiment of science or knowledge.

It is in this spirit that the law of 25 February 1992 set up the Conseillers et Avocats généraux of the Cour de Cassation in special service.

These people, who are required to fulfil the conditions of qualification and must be able to demonstrate at least 25 years of professional activity, are appointed for a period of five years, non renewable, when their competence and their activities qualify them particularly for judicial functions at the Cour de Cassation.

Opening then its doors, because it has nothing to hide of importance or regarding the weight of its thinking, the Cour de Cassation will see its decisions integrated even better into  public life and will make them understood and accepted by the “people of France” in whose name it has the duty to judge.

In 1994, the Cour de Cassation proceeded to the installation of its first special judge, who was attached to the Commercial chamber.

CONCLUSION

And tomorrow?  Tomorrow the Cour de Cassation will tackle, certainly with prudence but also with determination, the problems of a society evolving “at a rate of knots”, often to fill the silences or the insufficiencies of the law: problems of bio-ethics, the divided or fragmented family, deregulation and the forcible intrusion of the market economy.

While still remaining “the guardian of the law”, the Cour de Cassation should demonstrate, in an effort of wise, creative imagination, that nothing which relates to humanity, society or politics - in the widest sense - is foreign to it.

In the city and in our century, the Cour de Cassation will know how to face up to certain things: it will be for our distant successors, those of the third century, to analyse our worth and to form a view.

Let us put our trust in them.