Decree No. 2019-1333 of December 11, 2019 reformed French civil procedure and extended mandatory representation by a French lawyer before certain courts that were previously exempt - this is the case, the commercial court - but also before certain panels - such as the summary judgment judge.
Currently, in principle, representation by a lawyer is mandatory both before the French Judicial Courts ("Tribunaux Judiciaires") and before French Commercial Courts ("Tribunaux de Commerce").
1. Compulsory representation by a French lawyer before the Judicial Courts in France
The principle is that representation by a lawyer in litigation before French courts is mandatory.
There are exceptions to this principle.
1.1 The principle: the representation of the plaintiff and the defendant by a lawyer before the French Judicial Court is mandatory
According to article 760 of the Code of Civil Procedure: "The parties are, unless otherwise provided, required to constitute a lawyer before the judicial court. The constitution of the lawyer entails the election of domicile".
Representation is therefore mandatory both on the merits and in summary proceedings before the court, whether the procedure is written or oral.
· Compulsory representation by a lawyer before the judge in summary proceedings
Representation by a lawyer is made compulsory before the judge of summary proceedings except for disputes the amount of which is less than or equal to 10 000 € and in the matters listed in article 761 of the code of civil procedure.
In summary proceedings without any financial claim, such as summary proceedings under articles 145, 834 (former art. 808) and 835, paragraph 1er (former art. 809) of the Code of Civil Procedure, representation by a lawyer is therefore, as a matter of principle, mandatory.
· Compulsory representation by a French lawyer in proceedings on request (“sur requête”)
Likewise, proceedings on request before the Court of Justice are subject to mandatory representation by a lawyer (French Code of Civil Procedure, art. 846)
· Compulsory representation by a French lawyer when requesting a commercial rent review
Mandatory representation has also been extended in other specific areas. Thus, in matters of commercial rent reviews, article R. 145-26 of the Commercial Code has been amended and provides that "the parties are required to constitute a lawyer".
· Mandatory representation by a lawyer in tax proceedings before civil courts
In tax proceedings before the civil courts, the provisions of Article R. 202-2 of the Book of Tax Procedures now require that the parties constitute a lawyer.
The decree also extends the mandatory representation by a French lawyer to other disputes within the jurisdiction of the Judicial Court, for which it was not previously mandatory in the areas of expropriation and family matters.
· Exceptions to the obligation to constitute a French lawyer
According to article 761 of the Code of Civil Procedure, the parties are exempted from the obligation to constitute a lawyer in the cases provided for by the law or the regulations and in the following cases:
- 1° In matters falling within the jurisdiction of the enforcement judge, unless the claim exceeds 10 000€, in which case the representation by a lawyer is mandatory.
- 2° In matters listed in articles R. 211-3-13 to R. 211-3-16, R. 211-3-18 to R. 211-3-21, R. 211-3-23 of the code of judicial organization and in matters listed in table IV-II annexed to the code of judicial organization
- 3° Excluding matters falling within the exclusive jurisdiction of the judicial court, when the claim is for an amount less than or equal to €10,000 or has as its object an unspecified claim originating from the performance of an obligation whose amount does not exceed €10,000. The amount of the claim is assessed in accordance with the provisions of articles 35 to 37 of the Code of Civil Procedure. When an incidental request has the effect of making the written procedure applicable or of making representation by a lawyer compulsory, the judge may, ex officio or if a party so requests, refer the case to a future hearing held in accordance with the applicable procedure and invite the parties to constitute a lawyer.
In matters within the exclusive jurisdiction of the judicial court, the parties shall be required to constitute a lawyer, regardless of the amount of their claim. The State, the departments, the regions, the municipalities and the public establishments may be represented or assisted by a civil servant or an agent of their administration.
2. The absence of mandatory representation by a lawyer before the enforcement judge in France
According to article 761 of the French Code of Civil Procedure, the representation by a lawyer before the enforcement judge ("Juge de l'exécution" or "JEX") is not mandatory, unless the claim originates from a debt or tends to the payment of a sum exceeding €10,000, in which case representation by a lawyer is mandatory. However, the following are expressly excluded: seizures of earnings and eviction proceedings.
3. The absence of compulsory representation by a lawyer if the claim does not exceed €10 000 and if it is not a matter of exclusive jurisdiction of the Judicial Court
In addition to the matters listed in articles R. 211-3-13, R. 211-3-18, R. 211-3-21, R. 211-3-23 of the Code of Judicial Organization, paragraph 3 of article 761 of the Code of Civil Procedure specifies that - apart from matters falling exclusively within the jurisdiction of the judicial court - if the claim does not exceed €10,000, representation by a lawyer is not required. In this case, the jurisdiction will be devolved to the local chamber of the Judicial Court, called the local court. In case of summary proceedings before the Judicial Court, representation is therefore not compulsory in disputes where the financial stake is less than or equal to 10 000 €.
In the event of an incidental claim exceeding this amount, the judge may, ex officio or at the request of a party, refer the case and ask the parties to constitute a lawyer (French Code of Civil procedure, art. 761, 3°). Thus, a dispute whose stakes are less than or equal to €10,000 at the time of the referral in demand, may become a procedure with compulsory representation, if a counterclaim exceeds this amount.
4. Representation by a lawyer in France is not obligatory before the Litigation and Protection Judge
Before the judge in charge of litigation and protection (“Juge du contentieux et de la protection”), who is competent in matters of protection of adults, eviction, consumer credit, residential leases and overindebtedness, representation by a lawyer is never compulsory, regardless of the amount of the claims, whether on the merits or in summary proceedings.
5. The representation by a lawyer before the Commercial Courts in France is in principle mandatory
According to Article 853 of the French Code of Civil Procedure: "The parties are, unless otherwise provided, required to constitute a lawyer before the Commercial Court".
This text does not distinguish between proceedings on the merits, summary proceedings or proceedings on request. The lawyer is therefore obliged to appear before the commercial court on the merits, in summary proceedings and also before the judge on motions. The lawyer will have to draw up an act of constitution unless the commercial court considers that the conclusions are equivalent to a constitution. This principle of compulsory representation by a lawyer also has exceptions before the commercial court.
However, the representation by a lawyer before French Commercial Courts is, exceptionally, not mandatory in the following cases provided for paragraph 3 of the said Article 853 of the Code of Civil Procedure:
when the law or regulation provides otherwise
when the claim is for an amount less than or equal to 10 000 €
within the framework of the procedures instituted by Book VI of the Commercial Code, i.e. insolvency procedures
for disputes relating to the keeping of the trade and companies register.