International relations of the Court of cassation

The Supreme Court Lawyer facing a request for appeal
What is the role of Supreme Court Lawyers? They are specialized in quashing proceedings and responsible for representing and advising parties before the Council of State and the Court of cassation. When representation is mandatory, only Supreme Court Lawyers can represent parties. In this context, when a party seeks to lodge an appeal or should defend an appeal lodged against him/her, the party must instruct a Supreme Court Lawyer. This instruction remains optional in the few cases where representation by a lawyer is not mandatory, which is for the most part in criminal matters.
How to instruct a Supreme Court Lawyer? Firstly, he/she can be instructed under the legal aid scheme. As for any courts, there is a legal aid scheme at the Court of cassation. In this context, the Supreme Court Lawyer can be either appointed by the court or at the request of the legal aid beneficiary, who can choose freely a Supreme Court Lawyer.
Outside the legal aid scheme, when the party had not been represented by a lawyer in front of lower courts or when the party wishes to choose the Supreme Court Lawyer, he/she must select the lawyer from the list of Supreme Court Lawyers registered at the Council of State and Court of cassation bar.
Nevertheless, in practice, the easiest and most common way is to request the lawyer who assisted the party before the lower courts to instruct directly a Supreme Court Lawyer he/she usually works with. The lawyers and Supreme Court Lawyers have close and permanent links in the interest of parties.
The lawyer will transmit the entire file, composed of the attacked ruling, conclusions and other attachments, in order for the Supreme Court Lawyer to update the file and start the appeal’s instruction. The lawyer will be duly informed of the advancement of the quashing proceedings and will remain a focal point throughout the whole proceedings.
Once instructed, the first step of the Supreme Court Lawyer is to check whether he/she is in a position of conflict of interests. Obviously, if the lawyer is in a position of conflicts of interests, he/she cannot accept the case and the party should instruct another Supreme Court Lawyer.
When not in a situation of conflicts of interests, the Supreme Court Lawyer has to constitute the entire file of proceedings, by requesting its transmission, in most cases from the court lawyer. Following this, there is a key preliminary phase consisting in assessing the prospect for success of the appeal. Before the appeal processing, the Supreme Court Lawyer has to bring a fresh and independent look on the prospect for the success of the appeal, which implies to identify solid pleas on which the ruling could be objected as well as to consider the party’s situation and the objectives pursued. The lawyer must also ensure that the appeal could potentially contribute to achieve the party’s goals.
This duty to provide guidance is systematically applied and fulfills two set of objectives that are equally important.
The first objective is to provide a service to the party. When the Supreme Court Lawyer has issued a positive opinion, the party is assured of stating pleas against the objected ruling, which might fall within the scope of supervision of the Court of cassation. The party is also assured that the specific proceedings of the Court of cassation could be duly followed from start to end.
On the contrary, when the Supreme Court Lawyer has issued a negative opinion, it prevents the party from starting unsuccessful appeal proceedings, which could incur expenses.
Beyond this first objective, the second objective is the general interest. Through the mission of guidance on the prospect for success of appeals, Supreme Court Lawyers contribute to the good administration of justice and avoid burdening unnecessarily supreme courts, such as the Court of cassation, with appeals bound to fail. In this regard, Supreme Court Lawyers act as both a first-level filter and a judicial officer.

Supreme Court Lawyers and the decision-making process
When a Supreme Court Lawyer is seized by a new case, the first question concerns the time period allowed to lodge an appeal, so whether the party can still lodge an appeal and if so until which date. This is the first phase of the file. The time limit is 2 months from the notification by judicial officer of the decision of the court of appeal, in most cases. Within this limit, when the Supreme Court Lawyer lodges the appeal, it stops the time limit.
Once the appeal is lodged, the second phase of the file begins, together with a second time limit. This is the time limit of the substantiated memorandum, which is 4 months from the filing of the appeal. Once the substantiated memorandum submitted, there is a time for the defense lawyer to present observations regarding the appeal. The time limit for the statement of defense is 2 months from the notification of the substantiated memorandum.
Then, once the statements submitted by the lawyers, there is a time to process the appeal, for which the court is mainly responsible.
Supreme Court Lawyers keep playing a role in the jurisdictional phase as the Court of cassation is currently developing three different tracks in order to review the appeals.
A short track for the most straightforward cases, for which the lawyer will submit a brief report.
A long track for cases presenting particular legal issues or new legal questions or of a specific interest for society.
An intermediary track for any other cases.
Supreme Court Lawyers play a key role during the file examination as they may report that a file is misdirected in the short path, for instance to the judge reporter and court’s members.
Regarding the long track, the Supreme Court Lawyer can act beforehand, by notifying the file as of particular interest. The lawyer can also act during the examination, after the instruction session, by talking directly with the Advocate-General. Lastly, the lawyer can argue the misdirection during the hearing.
Before the Court of cassation, as any other courts, a case ends with a hearing. At the Court of cassation, proceedings are mainly written. Some cases are therefore not pleaded, unless brought in front of the plenary assembly or joint chambers. Cases going through the long track usually give the occasion for the lawyer to plead the case once again.
After the pleadings, the last step is the decision. Once the decision is rendered, the Supreme Court Lawyer transmits the ruling to the client and explains it. In the case of a quashing with referring back, the lawyer may indicate and explain how to refer to the Court of appeal. The lawyer may also explain the execution measures decided by the Court of cassation, which can request a compensation for proceedings to the losing party. The Supreme Court Lawyer may try to reach an amicable settlement, order the enforcement of the execution measure, and then recommend to instructing a judicial officer for the forced recovery.
This process between the appeal submission and the decision usually last about 12 months. Once the decision is rendered and explained to the client, the task of the lawyer is over and no appeal can be lodged against a ruling of the Court of cassation, except particular cases with substantive mistakes or omission to pass judgement. Generally speaking, when the decision is rendered, the lawyer’s task is over.
The Supreme Court Lawyers facing new developments
The Court of cassation was the first European Supreme Court to fully digitalize its proceedings for civil matters. This digitalization is the result of a consultation between the Court of cassation and the Supreme Court Lawyer Bar. It facilitates greatly the functioning of our law firms, including for the submissions of acts, appeals, memorandums and complementary observations. It also eases the transmission of those acts to our fellow lawyers, as we notify and sign our acts digitally.
It also facilitates the proceedings follow-up as we can follow in real time the proceedings progress, the appointment of the judge reporter and the advocate-general. We may also have online access to documents drafted by judges, such as the report, the Advocate-General opinion and finally the decision, which is rendered at 2 PM sharp.
Another development of our mandate is the priority constitutional question (or QPC in French) and relates to the content itself of our examination. The QPC was created in 2010 and drastically changed the mandate of the Supreme Court Lawyers, as it offers a new plea for quashing. We can intervene by two different manners to support a QPC.
Firstly, we may plead for a QPC, which has already been transmitted by trial courts to the Court of cassation, acting as filter judge. In this situation, we do not create the QPC but we may consolidate the legal grounds to make it better targeted.
The second and most common situation is when the QPC represents one plea among others during the appeal. We will then assess the opportunity to raise a QPC and include it in all relevant files. Various QPC have risen up in the different law firms. For instance in criminal matters, there is a well-known QPC regarding the police custody without a lawyer’s assistance and the non-compliance of the right to remain silent. More recently in criminal matters, there was also a QPC regarding the use of visioconference without the consent of the individual. In civil matters, a QPC dealt for instance with the use of bone test to determine the individual’s age.
When the QPC is transmitted to the Constitutional Council, we may also intervene before the Constitutional Council.
The last development regarding our mandate is the recent evolution of the compliance review of the national law with supra national norms, such as European Union Law and other international conventions.
First, regarding the European Union Law: the development of the European Union have led us to raise many pleas based on a failure to observe EU Law.
Recently, we may mention the example of labor law where we have developed many pleas based on a failure to observe EU law, namely regarding the working time.
We may also submit a preliminary question, when we consider that the interpretation of EU law raises a serious issue. When such a question is transmitted to the Court of Luxembourg, we may intervene to present our observations on this question.
As for other international conventions, namely the European Convention of Human Rights, the case law of the European Court of Human Rights has led us to develop, more and more frequently, pleas based on the non-compliant with the Convention.
For instance, on the failure to observe the right to a fair trial, the right to respect for private and family life, or the right of property, including the case law on evictions.
Recently, Protocol n°16 also enables us to suggest the Court of cassation to request the Court of Strasbourg to give an advisory opinion on questions of principle relating to the interpretation of the Convention. The Court of cassation has requested such opinions for instance on surrogate motherhood.
When an appeal is set aside, we are frequently questioned regarding the possibility to refer to the European Court of Human Rights. Most of the time, parties think that their case could be fully reexamined when referring the matter to the Court of Strasbourg. Very frequently, we unfortunately have to disappoint the parties as cases can be reexamined only in a few legal matters. We may only request the Court to condemn the State, and only in particular cases when we are able to raise relevant pleas. In most cases, we discourage the parties to do so as the pleas are either inadmissible or unfounded. However, in few cases, we may advise the parties to seize the Court of Strasbourg when there are relevant pleas on various subjects, such as proceedings, for instance the right to a fair trial, or substantive issues, for instance cases of police violence.
We may be called upon to refer cases to the European Court of Human Rights and follow the whole proceedings, and if the case is pleaded, to participate in the hearing before the Court.

History of the Priority Constitutional Question

The creation of the Priority Constitutional Question provoked in France a real legal revolution.

It was introduced into our Constitution by the constitutional law of 23 July 2008. Until then, the respect of the hierarchy of norms, which is the founding principle of the rule of law, was only ensured by a prior control, conducted between the vote of the law and its promulgation, at the initiative of 60 deputies or senators. Thus, it was possible to imagine a political unanimity on a text which did not comply with the Constitution, that the law was voted, that it was not referred to the French constitutional judge, the Constitutional Council, and that it came into force, despite its non-conformity.

French judges, who since 1975 for the Court of cassation, have recognized their competence to assess the conformity of the law with France's international commitments, namely European Union law and the European Convention on Human Rights, paradoxically did not exercise a similar control over the Constitution itself, even though it was placed at the top of the hierarchy of norms.

This constitutional law of 2008 introduced a new article 61-1 into the Constitution, which reads as follows:

"When, in the course of proceedings pending before a court, it is claimed that a legislative provision infringes the rights and freedoms guaranteed by the Constitution, the matter may be referred to the Constitutional Council by the Council of State or the Court of cassation, which shall give a ruling within a specified period."

An organic law and several other texts have organized the procedure, but the essence is contained in the constitutional article:
- it is no longer a prior control, but an a posteriori control, within the framework of proceedings pending before a court, and at the initiative of one of the parties to the proceedings,
- all legislative provisions, without any other condition than being a law, are likely to be concerned,
- the norm of reference is not the entire Constitution, and in particular not its rules establishing the specific powers of the public authorities, but the rights and freedoms that it guarantees: it is therefore the “block of constitutionality” (constitutional corpus) resulting from the preamble of the Constitution, and including the Declaration of the Rights of Man and of the Citizen of 1789 and the preamble of the Constitution of 1946, but also the Charter of the Environment, which will be most often mobilized,
- the control of the conformity of the law with these constitutionally-guaranteed rights and freedoms will be carried out by the Constitutional Council alone,
- finally, the two supreme courts of the two French jurisdictional orders, the administrative order and the judicial order, are the only ones competent to refer cases to it.

This new possibility offered to citizens came into effect on 1 March 2010. In twelve years, the Constitutional Council has been seized of approximately one thousand Priority Constitutional Questions. On many occasions, it ruled legislative provisions contrary to the Constitution, which were therefore repealed.

What is the examination procedure of a Priority Constitutional Question?

I will take the example of the judicial courts, but everything that concerns them can be transposed to administrative courts. As provided for in the Constitution, in each order of jurisdiction, only the Supreme Court is authorized to refer a question to the Constitutional Council. What I will present for the Court of cassation may therefore also be applied to the Council of State.

But let us start from the beginning. The Priority Constitutional Question is always initiated by a party to a pending trial, before any civil or criminal court (with the exception of the Court of Assize for criminal courts). This means that the judge cannot, of his own motion, decide to ask a question.

The question must be decided before any other decision is made on the case. It is for this reason that the constitutional question is called a “priority” question. If the judge considers that there are no grounds for referring the question to the Court of cassation, he/she may decide the case immediately. The decision refusing to refer the question is not subject to appeal. On the other hand, the same question may be raised again before the court of appeal or the Court of cassation, if the appeal against the decision on the merits is lodged.

The Court of cassation is the compulsory transit point: the trial judge cannot refer a question directly to the Constitutional Council. If the judge considers that the conditions have been met, he/she will refer it to the Court of cassation, which will decide whether or not to refer it to the Council. In the same way, the Court also decides whether or not to refer questions raised directly in front of the Court during the examination of an appeal on a point of law.

If the judge decides to refer the question to the Court of cassation, he/she must stay the proceedings, pending the decision of the Court of cassation and, if the question is referred to the Constitutional Council, the decision of the Constitutional Council. There are, however, exceptions to this rule, to allow the judge to rule in case of emergency. Thus, in criminal matters, the judge may not stay the proceedings when a person is detained because of the case to which he/she refers the question.

If the stay of proceedings is the rule, it is obviously because of the consequences that the decision of the Constitutional Council may have on the outcome of the litigation. The procedure is, in any case, covered by tight deadlines: from the receipt of the judgment transmitting the question, the Court of cassation has three months to rule and decide whether or not to refer it to the Constitutional Council. In case of referral, the Constitutional Council must rule within three months.

When a Priority Constitutional Question has been referred to the Court of cassation by a trial court, the Court of cassation will act as a filter, as specified by the Constitution, and it will only refer questions that it considers serious. I will come back to this.

At all stages, the debate on the question, which is held according to the rules of the court before which it is referred, is adversarial. Each party must be given the opportunity to share its opinion on whether or not the question should be referred, before the judge decides.

On what criteria is the decision made?

The first condition is that a legislative provision must be involved. This criterion rarely raises an issue. On the contrary, it is widely understood.

Indeed, it may also be argued that a law does not conform to the Constitution, not because it provides for something, but because it does not. This is a plea of negative incompetence against the legislator.

In the same vein, the Constitutional Council accepts that the plea of unconstitutionality is not addressed to the law itself, but to its interpretation in the case law of one of the two Supreme Courts. This can place the Court of cassation in the position of assessing whether its own case law can be seriously alleged of being contrary to the Constitution, which is not an easy exercise, but one that it must undertake.

This is how the Court of cassation referred article 544 of the Civil Code to the Constitutional Council, insofar as it deduced from the absolute nature of the right of property that it provides that any irregular occupation of another person's land constituted a manifestly unlawful disturbance and had to lead the summary proceedings judge to order the eviction of the occupants without right or title, without the conditions of this occupation being taken into account.

Another equally important condition for referral to the Constitutional Council is that the text that the question alleges is contrary to the rights and freedoms guaranteed by the Constitution must be applicable to the dispute or to the proceedings, or constitutes the basis for the proceedings. Indeed, one cannot ask just any question concerning any text on the occasion of any litigation. This criterion is closely controlled by the Court of cassation since, in the event of referral, it is no longer discussed before the Constitutional Council, which defers to the appreciation of the filter judge. It must be a legislative provision which allows to decide the dispute, whether it constitutes the basis of the dispute, whether it regulates the proceedings before the court, or the jurisdiction of the court, whether it has been invoked by the parties, or applied by the court.

Nevertheless, the law provides for the possibility of a change of circumstances, which authorizes the Constitutional Council to re-examine the constitutionality of a text that it had previously examined in the context of a priori control. Here again, it is up to the judge, and in particular the filter judge - the Court of cassation - to assess the existence of this change of circumstances, in fact or in law. This change of circumstances may result, for example, from the extraordinary development of the use of the police custody procedure in 20 years, between the prior control of the Constitutional Council in provisions on the presence of a lawyer during police custody and 2011, when the Court of cassation decided to refer a question on this same text, due to the change of circumstances resulting from the development of the police custody procedure.

These conditions are the same before the trial judges and the Court of cassation.

What is the role of the Court of cassation as a filter judge?

In order to prevent the Constitutional Council from being overwhelmed with more or less relevant questions, the procedure provides for a preliminary examination, which can therefore be two-stage, when the question is raised before a trial judge, or one-stage, when it is raised directly before the Court of cassation. In a rather counterintuitive way, this second situation, when the question is raised directly before the Court of cassation, is the most frequent, and represents almost two thirds of the questions examined by the Court, as opposed to only one third for questions referred to it by trial courts.

However, the trial judge must only examine whether the question is not without seriousness. The level of requirement is thus quite limited.

On the other hand, if the trial court, at the end of its examination, has decided that the question is not of a serious nature, the Court of cassation, which receives this question, must, in order to decide whether or not to refer it to the Constitutional Council, carry out a different examination, which will consist of determining whether the question is new or serious.

The same applies when the question is raised directly before the Court of cassation, on the occasion of an appeal. In such a case, the Court of cassation is the only filter before the Constitutional Council, and it is therefore logical that it should immediately carry a close examination.

The following developments concern only the criterion of seriousness, which is the most efficient one.

Assessing the seriousness of a Priority Constitutional Question inevitably means, but cautiously and without replacing its control, applying the same criteria as those applied by the Constitutional Council, and in a certain way, acting as the first judge of the conformity of the text with the rights and freedoms guaranteed by the Constitution. It is therefore up to the Court of cassation to examine, in the light of the Constitutional Council case law, the consequences that it has already drawn from the rights and freedoms guaranteed by the Constitution that are invoked by the question, whether the legislative text is seriously likely to meet the allegations raised by the question.

In criminal matters, the Court of cassation, for instance, isfrequently led to determine whether a repressive text, which defines a criminal offence, does so with a sufficient degree of clarity and precision to satisfy the principle of the legality of offences and penalties, which results from article 8 of the Declaration of the Rights of Man and the Citizen. If it considers so, it will rule, according to an established wording, that the constituent elements of the offence in question are defined in a sufficiently clear and precise manner so that the interpretation of the text, which is part of the function of the criminal judge, can be carried out without risk of arbitrariness. If, on the other hand, the Court considers that this is not the case, then it must refer the question to the Constitutional Council, as it did with regard to the offence of sexual harassment, as defined by the law of 17 January 2002 as "the fact of harassing others with the aim of obtaining favours of a sexual nature", a referral which led, for the same reason, to its immediate repeal by the Constitutional Council.

Acting as a filter judge, and thus participating in the control of constitutionality without replacing the Constitutional Council, is delicate, since it is not up to the Court to decide the question, but only to assess its seriousness. This is a new and exciting responsibility for the Court of cassation. It is also an important workload for the Court of cassation, since it has been seized of nearly 4,500 questions in twelve years. It should be noted that a little less than half of these questions were raised in criminal matters, and dealt with by the Criminal Chamber alone.

The percentage of questions referred to the Constitutional Council hovered around 15% between 2010 and 2019. In 2021, it increased, since 27% of the questions asked in criminal matters were referred to the Constitutional Council and 19% of the questions in civil matters.

What is the articulation between the Priority Constitutional Question and the conventionality review?

As we have seen, the role of the Court of cassation is not the same in these two reviews, which are nevertheless both carried out with regard to fundamental rights. While in constitutional matters, the Court of cassation is only a stage in the process, opening the way to a decision that is to be taken by the Constitutional Council alone, the Court of cassation, after trial judges, is responsible for reviewing the conventionality of laws, as it has been doing for almost 50 years now.

Whatever the priority of the constitutionality review, it may happen that before the Constitutional Council has given its ruling or before its decision is effective, it is up to the Court of cassation to decide on a plea of unconstitutionality that has been referred to it.

This can happen in two situations.

First and mostly in criminal matters, when the Court of cassation cannot stay the proceedings, because it is, for example, seized of a matter of pre-trial detention with respect to a detainee, a matter in which a three-month time limit for ruling is required by law.

Thus, while transmitting to the Constitutional Council in July 2020 a question concerning the inadequacy of the Criminal Procedure Code to guarantee the consideration of the undignified nature of the conditions of detention in the context of litigation concerning pre-trial detention, it had, at the same time, to rule on the conformity of this silence with the requirements of the European Convention on Human Rights, even though France had just been condemned for this very failure by the Strasbourg Court. The Court of cassation therefore modified, without waiting for the decision of the Constitutional Council, its case law. It also imposed on the judge seized on the occasion of an application for release, a plea relating to the undignified nature of the conditions of detention, likely to constitute inhuman or degrading treatment prohibited by the Convention, to examine it and, if necessary, after having carried out the necessary verifications, to draw the consequences by releasing the person.

The Court of cassation may also need to anticipate the Constitutional Council, even when it can stay its decision, when the Constitutional Council has deferred the effects of its declaration of unconstitutionality, by giving the legislator a time-period to amend the law and by providing that, during this period, no consequences could be drawn from this unconstitutionality. However, when a parallel plea of unconstitutionality is brought before the Court of cassation, the Court cannot wait and must rule, even if it means anticipating, in the name of European law, the timetable set by the Constitutional Council.

This is what the Court of cassation decided to do in the field of police custody, by ruling in several cases on 15 April 2011 that the absence of a lawyer from the beginning of the measure and during questioning made the procedure null and void, even though the Constitutional Council, to which the matter had been referred and which had reached the same conclusion, had postponed the effects of its decision of non-conformity until 1 July 2011.

Through this procedure, the Court of cassation is thus, even more than in the past, at the heart of the control of the respect of fundamental rights. The dialogue of judges, which the Court of cassation already had with the European Courts, the Court of Justice of the European Union and the European Court of Human Rights, is now also practiced by the Court as a filter judge with the Constitutional Council. It is fascinating, sometimes complex, for the judge as well as for parties, but always in the service of the rule of law.