Background
In August 2022, Mme S. filed a declaration of appeal against a family-court judgment rendered by a juge aux affaires familiales in June 2022 in proceedings against M. Q. The appeal was limited on its face to specific parts of the lower-court ruling. Within the mandatory deadline set by Article 908 of the Code of Civil Procedure, Mme S. lodged written submissions whose operative section (dispositif) asked the Amiens Court of Appeal to “set aside” (mettre à néant) the judgment, then to rule afresh and grant a series of specifically enumerated claims.
M. Q. challenged the validity of the appeal. A pre-trial judge (conseiller de la mise en état) declined in March 2023 to declare the appeal lapsed, but M. Q. referred that ruling to a full panel. The Amiens Court of Appeal reversed on 1 June 2023, declaring the declaration of appeal lapsed (caducité) on the ground that the operative section of Mme S.’s submissions contained neither the word “reversal” (infirmation) nor the word “annulment” (annulation). The court added that even if “set aside” could semantically equate to “annulment,” Mme S. had raised no grounds of nullity in the body of her submissions, so the label could not save the appeal.
Mme S. petitioned the Court of Cassation, arguing that “set aside the judgment” unambiguously expresses a request for reversal and that requiring the precise statutory vocabulary constitutes an excessive procedural burden incompatible with the right to a fair hearing guaranteed by Article 6 § 1 of the European Convention on Human Rights.
The Court’s Holding
The Second Civil Chamber partially quashed the Amiens decision. It reaffirmed the principle established in its landmark ruling of 17 September 2020 (pourvoi n° 18-23.626) that, under Articles 542 and 954 of the Code of Civil Procedure, the operative part of an appellant’s submissions must expressly seek either reversal (infirmation) or annulment (annulation) of the judgment; absent either, the court of appeal can only confirm the judgment. The Court noted that this rule had been applied prospectively only to declarations of appeal filed after 17 September 2020, because it represented a new judicial interpretation rather than a settled requirement.
The Court then introduced an important qualification: when the exact terms infirmation or annulation are absent, but the wording of the operative section of the submissions — read together with the declaration of appeal where necessary — necessarily implies that the appellant is seeking reversal or annulment, the court of appeal is obliged to treat itself as properly seized of the case. Demanding the literal statutory vocabulary in such circumstances, on pain of lapse or automatic confirmation, obstructs access to the appellate judge and constitutes excessive formalism in breach of Article 6 § 1 ECHR.
Applying that standard, the Court found the Amiens decision untenable: the operative section of Mme S.’s submissions first asked to “set aside” the judgment, then asked the court to rule afresh on a precise set of defined claims, and the declaration of appeal had itself been confined to specific parts of the judgment. Taken together, these elements necessarily showed that Mme S. was seeking the reversal (infirmation) of those parts. The Amiens court should have recognized that it was seized of the appeal on the merits; by instead declaring the appeal lapsed it engaged in excessive formalism and violated the relevant texts. The case was remitted to a differently constituted bench of the Amiens Court of Appeal.
Key Takeaways
- The rule from 17 September 2020 — requiring the words infirmation or annulation in the operative section of appellate submissions — remains good law, but it now has a substantive safety valve: where reversal or annulment intent is necessarily implied by the submissions read alongside the declaration of appeal, the court of appeal must accept jurisdiction rather than declare lapse.
- Courts of appeal may not elevate the requirement of specific terminology into a purely mechanical trap; doing so constitutes excessive formalism and violates the Article 6 § 1 ECHR right of access to a court.
- Practitioners should still use the express terms infirmation or annulation in the operative section of their submissions to avoid any risk of lapse; the new qualification protects against inadvertent omissions, not deliberate departures from the rule.
- The lapse ruling cascaded to subsidiary holdings on costs and admissibility, all of which were quashed as necessarily dependent on the flawed primary ruling.
Why It Matters
The strict 2020 rule on appellate submissions generated a wave of appeals being struck on purely formal grounds, with litigants losing their right to a substantive review because of drafting lapses rather than any deficiency in the merits of their case. This ruling signals that the Court of Cassation is prepared to moderate that formalism where the appellant’s intent is clear beyond doubt, anchoring the corrective principle in the ECHR right of access to a court rather than in legislative reform alone.
For French civil litigators, the decision clarifies that a submission asking to “set aside” a judgment and then enumerating fresh claims — coupled with a declaration of appeal limited to identified grounds — will satisfy the jurisdictional requirement even without the magic words. The ruling is designated FS-B (published and intended for wider circulation), giving it immediate precedential weight before all courts of appeal.