The application of European Regulations by French courts
| Autor | Sabine Corneloup |
| Cargo del Autor | Professor at the University of Burgundy (Dijon) |
| Páginas | 119-133 |
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See Nota 1
Over the last decade, the European Union has adopted an important number of new instruments enhancing the judicial cooperation in civil and commercial matters. The judicial cooperation between member States has become a yard in a perpetual reform process. The pace of reform is very intensive and it is interesting to examine the impact of these new EU regulations on the national law of member States. In order to analyze the application of procedural regulations by French courts, and according to the general topic of the research, I will focus the attention on the new EU regulations. Thus I will leave aside Brussels I, because this important regulation is quite
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well known today and regularly applied by the courts2. It seems more interesting, in the perspective of the general topic of the research, to examine the other European instruments. What is their impact on French law ?
The French legislator shows these last years an increasing determination to improve the application of EU regulations. Usually, in France -as in many other Member States-, EU regulations are operational only months -or years- after their entry into force because the national provisions, which are often necessary for the application of new instruments, are adopted with delay3.
However, for some years now, it is to observe that the delay is decreasing. For example, the Regulation on small claims, applicable since January 1st, 2009, and the Regulation on orders for payment, applicable since December 12th, 2008, have been transposed into French law in December 2008, which means without any delay at all. This is quite unusual and must be underlined. In addition, the Minister of Justice has issued several administrative circulars4. Their aim is to explain how the courts shall apply the new regulations and they constitute very
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useful guides for the judges. Moreover, France provided the European Judicial Atlas with the main information about the national particularities. However, we will see later that unfortunately the information is not always exact, especially regarding the courts having jurisdiction to issue a European order for payment. So, one can say that at least from a formal point of view, the legislative environment in France for the application of EU regulations is increasingly satisfactory.
Regarding the use of modern communication technology5, France shows an openness which should make the European regulations more attractive in practice. For example, it is possible to use videoconferencing under the regulation on taking of evidence6, and the applications or requests under the regulations on small claims, enforcement orders and taking of evidence may be submitted to French courts by electronic means. France is also participating to the pilot project with Germany and Austria on the e-application for the European order for payment procedure7.
All national implementation measures have been incorporated into the French Code of Civil Procedure. The legislator decided not to create a specific title in the code, where would have been grouped all national measures making the regulations operational in France. He preferred to insert
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them into the existing chapters of the code, according to their object8. In this way, the Code has been progressively adapted.
This reform process seems to take place without being noticed neither by French citizens nor by lawyers who are not specialized in Private international law. Very few articles on the new regulations have been published in general law journals. Analysis can almost exclusively be found in journals specialized in EU law or in Private international law. Therefore, some French authors describe the integration of the new procedural regulations into French law as very «discrete»9.
The analysis of French case law shows that the different regulations have not the same success in practice. Some of the new regulations have found their place in French practice and they are regularly applied by the courts. But this is not the case for all of them, especially not for the optional instruments. For example, there is almost no case law on the regulation on taking of evidence or on the regulation on small claims. This is perhaps normal for the regulation on small claims because it is applicable only from 2009. But even the European enforcement order has given rise to very few court decisions. On the contrary, the regulation on service of documents, the regulation Brussels II bis and the regulation on insolvency proceedings are regularly applied by the courts. Regarding the regulations establishing jurisdiction rules, there may be some specific explanations. In particular, the French Cour de cassation requires an application by the courts of their own motion of European jurisdiction rules10. If the parties do not discuss the international jurisdiction of the
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court, the judge shall verify of its own motion that he has jurisdiction according to the regulation. Therefore, the number of judgments applying Brussels II bis and the regulation on insolvency is becoming quite important.
This contrasting situation leads to divide this article into two parts. In the first part will be analyzed the regulations which have become an entire part of French practice. In this first category can be found all the regulations establishing not only optional instruments but binding rules. As they are compulsory, their respect is not a choice in practice and the Cour de cassation ensures their correct application by the courts. The second part will deal with the regulations which have still not found their place in French practice and which are rarely applied by French courts. Most of the optional European procedures belong to this second category.
Apart from Regulation Brussels I, three other EU regulations are regularly applied by French courts : the regulation on service of documents, the insolvency regulation and the regulation Brussels II bis. It is not the place here to analyze the case law on all of them. The choice has been made to develop Brussels II bis but it is possible to precise briefly that the intra-European service of documents has become a reality and that more and more judgments can be found applying this regulation. In a quantitative approach, it is the most frequently applied procedural regulation in France after Brussels I. In the official database of French case law Legifrance, 81 judgments can be found where the Regulation n° 1348/2000 has been applied or at least where the parties have invoked the regulation11. In most of the cases, the Cour de cassation rejected the appeal in cassation. Recurring issues are
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the translation of documents and the date of service12. The main criticism addressed to the European framework of service of documents is the lack of consistency between the rules of the different regulations13. An important work of clarification must be undertaken in this field.
Regarding the insolvency regulation14, the number of French decisions is also increasing. 35 decisions can be found in the Legifrance database15. Among them there are 21 decisions of the Cour de cassation. The court rejected the appeal in cassation in most of the cases. 5 proceedings led to a cassation on the basis of the regulation, but they all dealt with the same legal issue : according to the Cour de cassation, when a French court opens a main insolvency proceedings, the right of access to justice requires that creditors domiciled in other Member States have the possibility in France to challenge the jurisdiction assumed by the French court, even if the procedural conditions of French law are not fulfilled16. The main other cases were about the determination of the center of the debtor’s main interests when the debtor is a natural person17, the law applicable to the exercise of
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creditor’s rights18and the recognition of a foreign main insolvency proceedings although the registered office of the debtor was in France19.
The regulation Brussels II bis, even if it is applied less often than the regulation on service of documents, is nevertheless becoming important in French practice. In the Legifrance database can be found 35 judgments in total applying the regulation : 14 judgments of the Cour de cassation and 21 judgments of courts of appeal. But the real number is more important because the database is not exhaustive, especially not for the judgments of inferior courts.
Regarding the 14 judgments of the Cour de cassation, 6 of them pronounced a cassation, which means that the courts of appeal did not apply the regulation correctly. Sometimes the mistakes are very deep, as for example, the confusion between jurisdiction and applicable law20. Other mistakes are less significant because they are relating only to national rules of residual jurisdiction21. Most of the problematic cases deal with parallel proceedings in matters relating to divorce. The court had to answer the question of Lis pendens or of recognition of a foreign divorce while the proceedings in France were still pending22. A majority of them are involving non-member States. Furthermore, only 3 judgments of the Cour de cassation are related to pa-
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rental responsibility : one is about provisional measures23, another about a wrongful removal of a child24, and the third about the recognition of rights of access25.
Among the 21 judgments of the courts of appeal, 14 date from this year, 2011, which means that the application of the regulation is increasing. In comparison with the judgments of the Cour de cassation, the...
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