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.
Working at the Court of cassation: Judge referee
What is the role of a judge referee?
The judge referee has only an advisory vote, except in cases for which they are rapporteurs, in which case their vote is deliberative. Generally speaking, the daily work of a judge referee is the same as a judge.
The work of a judge referee consists in processing the appeals which have been assigned to him/her. The judge referee has to assess them to determine whether, from his/her point of view, the appeal is well-founded (quashing) or unfounded (dismissal).
Our role is to provide an in-depth and detailed work through a document called a Report, addressed to other members of the Chamber. It is important to notice that a judge referee is not alone. We belong to a group. Our work precisely aims at allowing other members of the chamber to have a clear idea of the legal questions and potential responses that we could bring.
The judge referee’s analysis, delivered during the deliberation, should be listened carefully by other colleagues. Even though the judge referee does not have a deliberative vote, he/she will have a valuable voice during the deliberation. In this regard, the roles of the judge referee and of the judge are identical.
***written on screen***82 judge referees and 121 judges – updated in 2021
Besides his/her court activities, the judge referee has many other activities. We can participate in conferences organized at the Court of cassation, in relations to our fields of expertise, developed within the section of the chamber we are working in. We can also participate in the daily life of the Court of cassation through publications. On my side, I contribute to the creation of the criminal chamber’s letter, which aims to highlight the criminal chamber’s case law as easily, clearly and precisely as possible.
How to become a judge referee?
The process to be appointed judge referee is highly selective. It requires a specific preparation. First, we shall draft a motivated request via mail to explain what we could bring to the Court of cassation as a judge and how the request is in line with our previous experiences.
Our application is then assessed by the High Council of the Judiciary. I believe that there is a pre-selection of applications based on seniority, as there are such criteria. Then, if the application has been selected, we are heard by the High Council of the Judiciary.
**written on screen***To be first grade or To be registered on the career advancement list – To be less than 47 years old ***
The interview is conducted in front of members of the High Council of the Judiciary and consists in assessing the applicant judge’s skills to become a judge referee.
Following closely legislative and case law recent activities is very helpful for the interview. Following this, the High Council of the Judiciary will take its decision.
What also matters for the High Council of the Judiciary is the eagerness and the will to exercise these functions and previous professional experiences of the applicant.
Is it a challenge to learn the quashing technique?
Being a judge referee at the Court of cassation is another work. We are not very well prepared to become a judge referee. As a first step, the novelty can be challenging.
The writing style of decisions is very different from what we could have experienced in lower courts. We need time to better grasp the quashing technique. When we start as a judge referee at the Court of cassation, we follow a training organized by the Court, in order to understand which tools are available for judges and judge referees. In addition, within the chamber where we are assigned, we have a training period during which the number of files is very low at the beginning and increase progressively over the months.
The work within the chambers has a strong collective dimension. Judge referees have tutors, just like judges. Tutors accompany new judge referees for a few months. In these conditions, the entry into office is smooth.
From my experience, we need approximately 1 year to 18 months to be comfortable with this technique and to the Court’s functioning.
We may be called to sit with very experienced judges, which is very rewarding.
The preparation of hearings is an essential period, where we learn a lot as we explore legal issues from other cases. The presidents of chambers give us an important position. Many of us start working on legal issues we might not master. We therefore have a fresh look to question these legal issues, which might seem obvious to more experienced colleagues.
The presidents of chambers pay particular attention to our observations even though we do not deliberate and have no deliberative vote on the files of other members of the Chamber.
An enriching professional experience?
On the one hand, the main interest of working at the Court of cassation is to participate in the case law developed by the Court.
We should also recognize the great working conditions that I had never experienced before.
Following such an experience at the Court of cassation, which can be more or less in the long run, within a maximum of 10 years, we acquire new knowledge and adopt a new way to approach a case. We develop new automatisms, methods, working tools and knowledge, which can be very useful within lower courts to prevent rulings to be quashed later on by the Court of cassation. Some judge referees would wish to come back as they developed specific knowledge and working methods, particularly in relation to the quashing methods, that they can use only here. Reciprocally, the Court of cassation also need this knowledge.
So many people are trying to come back working at the Court of cassation because here we are very happy professionally.
Working at the Court of cassation: Judge auditor
What is the role of a judge auditor of the SDER?
A judge auditor of the SDER intervenes on 3 different occasions:
- first of all, when a judge is appointed as rapporteur of a plenary assembly
- the second situation is when a judge is appointed as judge rapporteur of a joint chamber
- lastly, in case of advisory opinions
The judge auditor has a crucial role for the judge rapporteur, as he/she is kind of a “super assistant”, who will be in charge of preparing an in-depth and complete research file. What is expected of a judge auditor is great discipline and extensive legal knowledge.
The judge auditor can also intervene on demand when the judge faces particularly complex issues. The judge auditor will be requested to gather useful elements of doctrine and case law as well as to analyze parliamentary debates. This is a lengthy work, which is very helpful for the judge rapporteur as it enables the judge to better understand the spirit of the law, thus guiding his/her work.
What is the daily tasks of a judge auditor?
On a daily basis, my work mainly consists in researching in the service of judges of both the criminal chamber and lower courts.
As we do research and direct appeals, there is an important computer work to undertake, as well as team management. The judge auditor is actually assisted by a team of legal advisers as well as registrars. The judge auditor has to oversee the work assigned to his/her team, to guide and control them.
More broadly, the research undertaken as part of plenary sessions is always an essential time for the service. For instance, I enjoyed working on the loyalty of evidence, which was a very interesting appeal, closely followed by courts and beyond, in investigation departments. All plenary files were very gratifying.
If I ever come back as a judge referee, I would have a good knowledge of the Court’s functioning, which is useful to approach these tasks that are completely different from the tasks in lower courts.
The Publications Unit is a transversal unit within the Documentation, Studies and Reporting Department (SDER). It is not related to a specific chamber and does not carry out research. Its traditional mission is to coordinate the Court’s publications. All information published in “bulletins” aim at helping readers to better understand the ruling.
Beside its traditional missions, some new projects have been recently implemented, namely to modernize those bulletins in line with digital transformation. The annual study and report of the Court of cassation, which gather all data related to the Court, are also being redesigned.
I am managing one of the two transversal units: the European and Comparative Law Unit. Transversal units work with the whole Court of cassation.
We are here to explain the case law from other courts, including the Court of Luxembourg, Strasbourg or Karlsruhe to the Court of cassation. We also work for certain appeals, such as the “Uber” appeal, which led to a large comparative law research given the issues at stake.
We also carry out comparative law research to enrich the Court’s reflections on its reforms and functioning, to explore how other Supreme Courts are working and to get some inspiration.
Why did you join the Court of cassation?
It is a great opportunity to work in an exceptional and historic setting, rather early in the course of a judge’s career, and to be able to contribute to the Court’s work and its larger projects, in line with the evolution of the institution.
I came here to open my mind. I think it is important to tell judges that the Documentation, Studies and Reporting Department (SDER) exists and that we can achieve this position within the Court of cassation at a rather young age. Unlike other positions at the Court, those are second grade or beginning of first grade positions.
This experience allowed me to gain an overarching vision and knowledge on the Court’s functioning that I would have never had if I was not here.
At the Court of cassation, we need to adapt to learn the Court’s codes and customs and provide a more in-depth work than we used to do to support judges in their jurisdictional research, as working at the Court of cassation is not purely jurisdictional. Contrary to a widespread image, the Court of cassation stays in touch with the public’s concerns as well as with the concerns of judges rendering justice in lower courts. The Court of cassation considers legal issues when debated in specific cases before the Court but also as part of conferences organized by the Court and research works with academics.
How to become a judge auditor?
As judge auditor cannot be a first position, a previous court experiences is required. Then, in order to apply, a CV and a letter of motivation should be drafted. In the case the application is selected, the applicant is heard by the High Council of the Judiciary for 30 minutes, including 10 minutes of presentation and 20 minutes of questions.
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.