Presentation of the Court by Chantal Arens, First President
ROLE OF THE COURT OF CASSATION
The Cour de cassation (Court of cassation) is the highest court in the French judiciary.
Due to its status, the Cour de cassation (Court of cassation) has a special position, compared to the other French judicial courts, which is essentially due to the following two characteristics.
First of all, the Cour de cassation (Court of cassation) 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 the texts of the Judicial Code that deal with the Court of Cassation: it is inseparable from the essential purpose of the Court, which is to unify case law and to ensure that the interpretation of texts is the same across the territory. It is the uniqueness of the Cour de cassation (Court of cassation) that enables uniformity of interpretation, and thus the development of authoritative case law.
Secondly, the Cour de cassation (Court of cassation) does not constitute a third level of jurisdiction above the lower courts and the courts of appeal. It is mostly called up on not to decide on the merits of the case, but to say whether the rules of law have been correctly applied, based on the facts sovereignly assessed in the decisions,. Thus, The Cour de cassation (Court of cassation) does not, strictly speaking, rule on the disputes that gave rise to the decisions referred to it, but on the rulings themselves. It acts in fact as the judge of the judges’ rulings: its role is to say whether they have applied the law correctly in the light of the facts, determined by them alone, of the case submitted to them and the questions put to them. Thus, the purpose of each appeal is to challenge a judicial decision, in respect of which the Cour de cassation (Court of cassation) shall say whether =the rules of law were correctly or incorrectly applied.
The Cour de cassation (Court of cassation) has jurisdiction to hear cases in civil, commercial, social or criminal matters, which are first judged by the so-called courts of first instance (judicial tribunal, commercial courts, employment tribunals…). Depending on the importance of the dispute, the decisions of these courts are either given at last instance, when they concern the smallest cases, or, in most cases, at first instance; they may then be appealed to a court of appeal, where they are re-examined in all their aspects, in fact and in law. Final decisions of the courts of first instance and decisions of the courts of appeal may themselves be appealed to the Cour de cassation (Court of cassation).
The origins of these distinctive features, which confer on the Court of cassation its singularity and ensure that appeals which are lodged before it are 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.
Nevertheless, the history of the Court can actually 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 of the Revolution was to maintain this institution, despite the fact that it was losing its rationale, and to 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, due to its legal and moral authority, the legislator has given the Court of Cassation additional missions. For example, it has the possibility to issue advisory opinions, as part of its unifying mission, in order to interpret a priori a law, before the judges of the court of first instance have ruled.
In addition, the Court’s role has also indirectly increased: on the one hand, various institutions of judicial nature have been created and composed in whole or in part of some of its members; on the other hand, the Court’s members are increasingly called upon to sit, including beyond the framework of their judicial powers, within various institutions of growing influence and importance.
STRUCTURE OF THE COURT OF CASSATION
The Court of cassation is comprised of chambers between which the appeals to be examined are distributed according to criteria defined by the Court’s Bureau.
The number of chambers has gradually increased from the original three (Civil Chamber, Criminal Chamber and Chambre des requêtes – which was abolished in 1947) to six. A Commercial Chamber (Chambre commerciale, économique et financière), a Labour Chamber (Chambre sociale) and a Criminal Chamber (Chambre criminelle) were added to the three civil chambers: the First, Second and Third Civil Chambers. Each chamber has its own presiding judge (président).
The First President (premier président), the head of the Court, assigns an unequal number of judges and judge-referees (conseillers et conseillers référendaires) to each chamber according to the number of appeals to be heard.
Each chamber is divided into sections, each one having its own respective bench of judges. A case is heard by three judges when the appeal is inadmissible ; when there are no serious grounds to overturn the ruling of the lower court or when the outcome of the case “appears to be self-evident”. In such cases, the Court declares that the appeal is “not admitted” (non-admission procedure). Otherwise, the case is heard by a bench, which includes a minimum of five judges, each one having a right to vote. The presiding judge may decide to sit in a plenary session of chamber (assemblée plénière de chambre) when the ruling might overturn previous case law or when the chamber 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 six chambers (full court) or judges from at least three chambers (joint benches (chambres mixtes)). These benches are presided by the First President or by the most senior presiding judge of one of the chamber of the Court.
The full court formation is composed of all the presiding judges and elder judges of the Court’s chambers, as well as one judge of each chamber, making a total of nineteen members. This is the most formal judicial formation of the Court. It decides on matters of public importance.
The decision to convene the plenary assembly is taken by the First President, the presidents of the chambers or the Prosecutor- General. Referral to the full court is decided when a case raises a question of principle or if a divergence between the lower courts and the Court of cassation occurs.
An important feature of a cassation decision given in full court is that the referring court must comply with the decision of the Court of cassation on points of law already decided by the latter.
In addition to the First President or his deputy, joint benches comprise four judges from each of the chambers of which it is composed (the presiding judge, the elder judge and two judges).
A case is referred to a joint bench when it falls within the jurisdiction of several chambers or when the question has been or is likely to be resolved differently in the different chambers. Referral is also automatic if the Prosecutor-General requests so before the opening of the hearing.
Decisions of joint bench are meant to set precedent and end chambers’ divergent opinions on a point of law.
As any other court, the Cour de cassation (Court of cassation) has a registry, which includes all the administrative departments. It is managed by a director of registry who reports directly to the First President. The Prosecutor General’s Office has its own secretarial offices headed by a director of registry. In addition, each chamber has one or more registrars.
The Cour de cassation (Court of cassation) also has a Legal Aid Office, whose functioning involves judges, lawyers, government officials and users. The task of the Legal Aid Office is to decide on requests for the payment of lawyers’ fees submitted by plaintiffs or defendants in an appeal, thus ensuring free access to the Court of all litigants. The president of the Legal Aid Office is appointed by the First President of the Cour de cassation (Court of cassation).
Finally, the Cour de cassation (Court of cassation) has a « Bureau » composed of the First President, the presidents of the chambers, the Prosecutor-General and three first advocate-generals, with a specific expertise. In particular, the Bureau determines the number and duration of hearings and establishes the national list of experts. It also advises the First President, who may consult it on major issues relating to the organization and functioning of the Court. The Bureau « regulates by deliberation the matters in which it is empowered by the laws and decrees ».
MEMBERS OF THE COURT OF CASSATION
There is a key distinction among the members of the Cour de cassation (Court of cassation), and more generally in the French judicial system, between members of the Bench and members of the Prosecutor-General’s Office. The role of the members of the bench is to judge, while the members of the prosecution are responsible for ensuring that the law is properly applied.
The judges of the bench include the First President, the presidents of chambers, the judges and the judge-referees (conseillers and conseillers référendaires) and the judge-auditors (auditeurs).
The First President has both judicial and administrative responsibilities. He or she presides over the full court formation and joint benches of the Court, as well as over one of the chamber whenever he or she considers it desirable.
The First President decides on the requests for urgency submitted by the parties to the appeal and, if necessary, may reduce the time limits for the filing of pleadings.
He or she decides on the relevance of requests for authorization to enter a plea of forgery lodged by the parties against a document produced before the Cour de cassation (Court of cassation).
He or she notes the lapse of an appeal for failure to file a pleading within the time limit or its inadmissibility as well as withdrawals.
He or she rules on requests for the withdrawal of cases from the cases-list.
He or she hears decisions of the Legal Aid Office, which may be referred to him or her.
He or she assigns the judges, judge-referees and registrars to each of the Court’s six chambers.
Finally, the First president chairs the Bureau and has authority over the director of the Registry for administrative matters.
In addition to his jurisdictional and administrative responsibilities within the Court, the First president has external activities. He or she chairs the High Council of the Judiciary, both in disciplinary matters and for the appointment of judges since the reform adopted by the Act of 23 July 2008, the Commission for the Advancement of Judges, as well as the Board of Directors of the National School for the Judiciary.
As the highest-ranking judge in France, the First president is a privileged interlocutor of the State authorities and frequently represents the judiciary at national and international levels. In particular, he or she is consulted on draft laws and decrees concerning the Court of Cassation, but also on major reforms affecting the judiciary. Owing to the independence of its function and its inherent authority, the legislator also makes the First President responsible for appointing personalities to chair or participate in various national bodies.
For several years now, the First President has been holding an annual meeting with all the first presidents of the courts of appeal, in the presence of representatives of the chambers of the Court and representatives of the Ministry of Justice, to discuss new legal issues emerging from the first instance courts and courts of appeal. These exchanges continue through regular contacts between the courts of appeal and the Cour de cassation (Court of cassation). They are a valuable tool for strengthening the links between the various levels of the judicial system and enable the Court to identify priorities in its mission to rule on the law in the cases it has to deal with.
There are six presiding judges of chambers - the seventh is the director of the Documentation, Studies and Report Department. They preside over the hearings of their respective chamber. In their absence, the hearing is presided over by the elder judge or, if unable to attend by the most senior judge present.
The conseillers are the judges of the Court. They are appointed by decree of the President of the Republic on the proposal of the High Council of the Judiciary. They are appointed among the judges of the judicial order. Professors of law or lawyers at the Conseil d’Etat (Council of State) and the Cour de cassation (Court of cassation) may also be considered. Among the judges, there are conseillers en service extraordinaire (councillors in extraordinary service), who are appointed for ten years, based on their expertise and experiences.
The judges may also be called upon to sit on committees and institutions to which they are appointed, generally by designation or on the proposal of the First President.
In each chamber of the Court, the elder judge (doyen) has a supervisory role over all cases.
The conseillers référendaires (judge -referees) are junior judges. They are appointed among the judges of first instance courts, for a maximum period of ten years. They have only an advisory vote during deliberations, except in cases for which they are rapporteurs, in which case their vote is deliberative.
The auditeurs (judge-auditors) are judges in charge of research and decision support, mainly in the Documentation, Studies and Report Department.
The Prosecutor General's office
The Prosecutor General's office presented by François Molins, Prosecutor General
The Prosecutor General’s Office is headed by the Prosecutor-General, assisted by six first advocates-general. It also comprises forty-two advocate-generals and seven advocate-general referees.
The members of the Prosecutor General’s Office are assigned by the Prosecutor-General to the Court’s chambers according to need and their expertise.
The Prosecutor-General’s Office has a specific role and powers. The Prosecutor-General’s Office of the Cour de cassation (Court of cassation) differs from other public prosecutor’s offices as it is neither hierarchical, nor is it in charge of the public prosecution. The Prosecutor-General and the advocate-generals are thus independent from the Minister of Justice, and the advocate-generals are not subordinate to the Prosecutor-General, who cannot give them instructions.
According to Article L. 432-1 of the Judicial Code, the Prosecutor-General’ Office « gives opinions in the interest of the law and the common good. It informs the Court on the scope of the decision to be taken. » In this sense, the Prosecutor-General is the defender of the law and acts as the intermediary between the Court and civil society.
In addition, the Prosecutor-General refers to the Cour de cassation (Court of cassation) appeals for revision, requests for referral to another court on grounds of legitimate suspicion or for the proper administration of justice, requests for settlement of judges, requests for registration of a plea of forgery or requests for recusal.
The Prosecutor-General also performs the functions of the Prosecutor -General’s Office at the Court of Justice of the Republic (Cour de justice de la République), where he or she is assisted for this purpose by an advocate-general.
The Prosecutor -General’s Office also intervenes in various commissions or committees close to the Court of cassation, as well as in the commission ruling on appeals lodged by judicial police officers who have been suspended or had their authorization withdrawn.
Finally, the Prosecutor-General is called upon to intervene in the management of the judiciary and its discipline. Thus, he is a member of the Advancement Commission of Judges and the Board of Directors of the National School of Judiciary. In addition, since the reform of the High Council of the Judiciary introduced by the Act of 23 July 2008, he chairs the High Council of the Judiciary panel responsible for disciplining prosecutors.